Case: 15-31114 Document: 283-1 Page: 1 Date Filed: 03/27/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
No. 15-31114 March 27, 2025
Lyle W. Cayce
Clerk
United States of America,

Plaintiff—Appellee,

versus

Thomas Steven Sanders,

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Louisiana
USDC No. 1:10-CR-351-1

Before Richman, Southwick, and Oldham, Circuit Judges.

Priscilla Richman, Circuit Judge:
Thomas Steven Sanders was convicted of kidnapping and murdering
a twelve-year-old child and received two concurrent sentences of death. In
this direct criminal appeal, Sanders brings numerous challenges to his
convictions and sentences. On December 23, 2024, then-President Biden
commuted Sanders’s sentences to two terms of life imprisonment without
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No. 15-31114

the possibility of parole. 1 That action did not necessarily moot the issues
Sanders has raised in his appeal. We now vacate Sanders’s conviction and
sentence under Count Two of his indictment, which was based on 18 U.S.C.
§ 924(c) and (j), and we otherwise affirm the district court’s judgment.
I
In 2010, Suellen Roberts and her twelve-year-old daughter, L.R.,
moved in with Suellen’s mother, who lived in a one-bedroom apartment in
Las Vegas. 2 Suellen rented a storage unit at Pacific Mini-Storage to store
some of her belongings. 3 Sanders worked and lived at the Pacific Mini-
Storage facility, and it was there that Suellen met Sanders. 4 During the
summer of 2010, Suellen visited the storage facility two or three times a
week. 5 Sanders and Suellen began dating and would often go out together. 6
Late that summer, the two started planning a Labor Day weekend trip to
Arizona with L.R. 7 Shortly before the trip, Sanders purchased ammunition

1
See Commutations Granted by President Jospeh Biden (2021-2025), Off. of the
Pardon Att’y (Feb. 21, 2025), https://www.justice.gov/pardon/commutations-
granted-president-joseph-biden-2021-present [https://perma.cc/2EJ5-59T3] (last visited
Mar. 27, 2025); FACT SHEET: President Biden Commutes the Sentences of 37 Individuals on
Death Row, The White House (Dec. 23, 2024), https://bidenwhitehouse.archives.gov
/briefing-room/statements-releases/2024/12/23/fact-sheet-president-biden-commutes-
the-sentences-of-37-individuals-on-death-row/ [https://perma.cc/9UJN-VDDS] (last
visited Mar. 27, 2025).
2
ROA.2249, 2253.
3
ROA.2253-54.
4
ROA.2255-56, 2284-85.
5
ROA.2256-57.
6
ROA.2257, 3192.
7
ROA.2259-60, 2264.

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No. 15-31114

for a .22 caliber rifle. 8 The three left Las Vegas in Suellen’s vehicle and
visited various attractions in Arizona over the Labor Day weekend. 9 On
Monday, they began their trip home to Las Vegas. 10 In response to
questioning, Sanders provided the following account. En route, they were
driving “down the road and found a place to go shooting the gun.” 11 Suellen
was “learn[ing] how to shoot his .22” rifle. 12 After Sanders and Suellen had
been shooting the rifle, Sanders fatally shot Suellen in the head at close range
and left her body where they had been shooting. 13 There is no evidence of an
argument or altercation prior to the shooting. 14 L.R. witnessed Sanders shoot
her mother and “was in hysterics.” 15 Sanders then drove with L.R. for three
or four days to Louisiana. 16 Sanders stopped in a remote area that was not far
from his childhood home, 17 and he fatally shot L.R. four times in the head and
chest before slitting her throat. 18 Sanders left L.R.’s body in the woods. The

8
ROA.2278-82, 2290-91.
9
ROA.2264-65.
10
ROA.5657.
11
ROA.5657.
12
ROA.2143.
13
ROA.2143.
14
ROA.5659.
15
ROA.2143-44, 2179.
16
ROA.2144.
17
ROA.2144, 2780-81.
18
ROA.2144.

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No. 15-31114

record reflects that approximately a month later, hunters discovered L.R.’s

remains. 19
In the meantime, Suellen’s family notified authorities that Suellen and
L.R. were missing after they did not return home to Las Vegas. 20
Subsequently, on November 14, 2010, the authorities apprehended
Sanders, 21 and he confessed to killing both Suellen and L.R. 22
Sanders was prosecuted by federal authorities under federal law. In
2014, after a four-day trial in the Western District of Louisiana, a jury
convicted Sanders of kidnapping and murdering twelve-year-old L.R. 23 After
a seven-day penalty phase trial, the jury determined “by unanimous vote that
a sentence of death shall be imposed” on both counts. 24 Pursuant to the
jury’s verdict, the district court imposed two concurrent death sentences. 25
This direct appeal follows in which Sanders presents several issues.
II
Sanders first argues that the district court erred by failing to order a
hearing sua sponte to determine whether he was competent to stand trial.26

19
ROA.2035-36.
20
ROA.2269.
21
ROA.2151.
22
ROA.2143.
23
ROA.1386.
24
ROA.3466-67.
25
ROA.3471.
26
Sanders Br. at 33.

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No. 15-31114

“An abuse of discretion standard applies to the district court’s failure to sua
sponte conduct a mental competency hearing.” 27
Pursuant to 18 U.S.C. § 4241(a), a district court shall order a
competency hearing “if there is reasonable cause to believe that the
defendant may presently be suffering from a mental disease or defect
rendering him mentally incompetent to the extent that he is unable to
understand the nature and consequences of the proceedings against him or
to assist properly in his defense.” 28 “There is no specific threshold or
‘quantum of evidence’ that requires the district court to order a competency
hearing.” 29 To determine whether the district court should have ordered a
hearing, we consider the following factors: “(1) the existence of a history of
irrational behavior, (2) the defendant’s demeanor at trial, and (3) prior
medical opinion on competency.” 30
In arguing that he had a history of irrational behavior, Sanders relies
heavily on the fact that defense counsel made an ex parte proffer before the
district court prior to the commencement of opening statements. During this
proffer, counsel stated that they had “always been able to maintain a
semblance of competency with our client. However, recently with voir dire
and the stresses of trial, he is decompensating.” 31 Significantly, during this
proffer, counsel did not provide the court any examples of Sanders’s
statements or behavior that led counsel to believe that Sanders might be

27
United States v. Flores-Martinez, 677 F.3d 699, 706 (5th Cir. 2012) (italics
omitted).
28
18 U.S.C. § 4241(a).
29
United States v. Mitchell, 709 F.3d 436, 440 (5th Cir. 2013) (quoting Davis v.
Alabama, 545 F.2d 460, 464 (5th Cir. 1977)).
30
Id. (quoting United States v. Ruston, 565 F.3d 892, 902 (5th Cir. 2009)).
31
ROA.5550 (italics omitted).

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No. 15-31114

incompetent to stand trial. 32 Counsel then informed the court that “if those
concerns grow even further, we’ll certainly alert the court again.” 33
Additionally, counsel stated to the court that their expert anticipated that
Sanders’s condition would worsen during trial. 34 After that proffer, counsel
did not bring to the court’s attention any further concerns regarding
Sanders’s competency. 35
Sanders also relies on evidence introduced at trial that he suffered
from mental illnesses and brain damage. This court has explained that “‘the
presence or absence of mental illness or brain disorder is not dispositive’ as
to competency.” 36 Put another way, a “defendant can be both mentally ill
and competent to stand trial.” 37 In responding to a verdict form submitted
during the penalty phase, the jury unanimously found, by a preponderance of
the evidence, that Sanders had brain damage but also unanimously failed to
find that he suffered from mental illness. 38 Nonetheless, Sanders’s
psychiatrist, Dr. Stewart, testified that he diagnosed Sanders with

32
Cf. United States v. Williams, 998 F.2d 258, 266 (5th Cir. 1993) (citing Lewellyng
v. United States, 320 F.2d 104 (5th Cir. 1963)) (explaining that the “allegations were
factually specific, and suggested reason to believe that the defendant might be seriously
mentally compromised”).
33
ROA.5551.
34
ROA.5550.
35
Cf. Medina v. California, 505 U.S. 437, 450 (1992) (stating that “defense counsel
will often have the best-informed view of the defendant’s ability to participate in his
defense”).
36
United States v. Mitchell, 709 F.3d 436, 440 (5th Cir. 2013) (quoting Mata v.
Johnson, 210 F.3d 324, 329 n.2 (5th Cir. 2000)).
37
Mays v. Stephens, 757 F.3d 211, 216 (5th Cir. 2014).
38
ROA.1616.

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No. 15-31114

schizoaffective disorder, with a qualifier of bipolar type. 39 Dr. Stewart also

testified that Sanders had delusions of being visited by dead people and
communicating telepathically; 40 however, the jury unanimously found that
Sanders did not experience delusions or hear “voices that others do not.” 41
Sanders claims a long history of irrational behavior based on his living in
disorder in a storage facility, poor hygiene, and substance abuse. 42 We note
there was no evidence of substance abuse at the time of trial. Indeed, during
his interrogation, Sanders told the officers that he had not “taken any kind of
drugs for six months prior” to killing L.R. 43 Our analysis in United States v.
Mitchell 44 suggests that these behaviors, standing alone, do not constitute
reasonable cause to believe Sanders may have been incompetent. 45 In that
case, we concluded that the district court did not abuse its discretion by
failing to conduct a competency hearing despite the fact that the defendant
had been in and out of mental health facilities; had made “illogical and
rambling statements” during the proceeding at issue; had been diagnosed
with schizophrenic disorder, bipolar type with psychotic features; and had
earlier been found not guilty of murder by reason of insanity. 46 Sanders
points out that in Mitchell, unlike the instant case, the defendant’s testimony
demonstrated his awareness and understanding of the proceedings.47

39
ROA.3030.
40
ROA.3015.
41
ROA.1616.
42
Sanders Br. at 42; Sanders Reply Br. at 4.
43
ROA.1684.
44
709 F.3d 436 (5th Cir. 2013).
45
Id. at 440-41.
46
Id. at 438-39, 441.
47
Sanders Reply Br. at 5 (citing Mitchell, 709 F.3d at 441).

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Although Sanders did not testify, as explained more fully below, we are
unpersuaded that this factor, by itself, demonstrates that the district court
abused its discretion when it did not conduct a competency hearing.
With respect to the second factor—Sanders’s demeanor at trial—
there is no record evidence of any outbursts or inappropriate behavior at trial
that would suggest Sanders was incompetent. The district court was able to
observe Sanders’s demeanor in court during jury selection, the
guilt/innocence phase of trial, and the penalty phase, all of which occurred
over a period of nineteen days. This factor weighs in favor of the district
court’s decision.
The third factor is prior medical opinions on competency. Sanders’s
counsel did not request that Sanders be evaluated specifically for competency
to stand trial. However, Sanders was examined by four experts: the defense’s
psychiatrist and neuropsychologist and the government’s psychiatrist and
neuropsychologist. Although the government and defense experts agreed
that Sanders had brain damage (but did not agree as to the severity of the
damage), no expert opined that Sanders was incompetent to stand trial. 48
The government’s psychiatrist, Dr. Thompson, testified that Sanders
appeared “pretty competent to me and able to tell me the story that he
related.” 49 Dr. Thompson also testified that when he observed Sanders in
the courtroom, Sanders appeared to be listening to the proceedings and
occasionally speaking to his lawyer at times when it was important. 50
Accordingly, this factor weighs in favor of the district court’s decision.

48
See Oral Argument at 5:57-6:09, https://www.ca5.uscourts.gov/
OralArgRecordings/15/15-31114_3-2-2020.mp3.
49
ROA.3322.
50
ROA.3322.

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We have explained that the “trial court is in the best position to decide
whether a competency hearing is necessary.” 51 Moreover, “[w]hether
reasonable cause exist[ed] to put the court on notice that the defendant might
be mentally incompetent is left to the sound discretion of the district
court.” 52 Here, counsel represented to the court during the pre-trial proffer
that they would inform the court if they had further concerns about Sanders’s
competency. No further concerns were relayed to the court, and the district
court was able to observe Sanders for nineteen days. None of the four experts
who examined Sanders testified that it was their opinion that he was
incompetent to stand trial, and one of those experts opined that he seemed
competent. After considering the evidence and the three factors, we
conclude that the district court did not abuse its sound discretion when it did
not sua sponte order a competency hearing.
III
Sanders contends that the district court erred in denying his motion
to suppress the statements that he made during custodial interrogation
following his arrest. He argues that the law enforcement officers should have
stopped questioning him when he invoked his right to counsel. 53 Sanders’s
briefing seems to focus on the penalty phase of his trial to the exclusion of the
guilt/innocence phase. The commutation of his death sentences would seem
to moot his complaints about the admission of the evidence that is in
contention. But, out of an abundance of caution, because he did not clearly
forfeit or affirmatively waive the applicability of his arguments to his

51
Mitchell, 709 F.3d at 440.
52
Id. (alteration in original) (quoting United States v. Davis, 61 F.3d 291, 304 (5th
Cir. 1995)).
53
Sanders Br. at 56.

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No. 15-31114

convictions, as opposed to his sentences, and because he affirmatively seeks

to have his convictions reversed, we proceed to address the denial of his
motion to suppress. In evaluating the denial of that motion, we review the
district court’s legal conclusions de novo and its factual findings for clear
error. 54 “We view the evidence in the light most favorable to the party that
prevailed below.” 55
On the day Sanders was apprehended at a truck stop, law enforcement
officers questioned him three separate times. The first time, he was
questioned immediately after he was arrested when he was placed in a parked
FBI vehicle. 56 The second time, he was questioned at the FBI office after
he was processed. 57 The third time, he was questioned at a correctional
facility. 58 It is undisputed that the officers advised Sanders of his rights and
that he signed a form waiving those rights. 59 It is also undisputed that during
the first and third interviews, Sanders stated that he wanted to speak to an
attorney. The parties dispute whether the invocations of counsel were
limited or ambiguous.
“If the suspect effectively waives his right to counsel after receiving
the Miranda warnings, law enforcement officers are free to question him.” 60
However, “if the accused indicates in any manner that he wishes to remain
silent or to consult an attorney, interrogation must cease, and any statement

54
United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002).
55
United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010).
56
ROA.1676.
57
ROA.1710-11.
58
ROA.1737-38.
59
Sanders Br. at 59.
60
Davis v. United States, 512 U.S. 452, 458 (1994).

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obtained from him during interrogation thereafter may not be admitted

against him at his trial.” 61 The question of whether a suspect has in fact
invoked his right to counsel is an objective inquiry. 62 A suspect “must
articulate his desire to have counsel present sufficiently clearly that a
reasonable police officer in the circumstances would understand the
statement to be a request for an attorney.” 63 “[I]f a suspect makes a
reference to an attorney that is ambiguous or equivocal in that a reasonable
officer in light of the circumstances would have understood only that the
suspect might be invoking the right to counsel, [Supreme Court] precedents
do not require the cessation of questioning.” 64 Further, if a suspect clearly
invokes his rights as to certain topics, the officer must honor the request by
changing the subject. 65
Sanders filed a pretrial motion to suppress all his statements except for
his admission that “I killed her [Suellen Roberts], I killed them both.” 66 The
magistrate judge conducted an evidentiary hearing on the motion to suppress
all other statements in the three interviews. 67 At the hearing, FBI Special
Agent Glen Kelly testified that he questioned Sanders in the FBI vehicle. 68
This first interview in the vehicle was not recorded. After Kelly asked
Sanders for Suellen’s location, Sanders replied that she was dead and that he

61
Fare v. Michael C., 442 U.S. 707, 709 (1979).
62
Davis, 512 U.S. at 459.
63
Id.
64
Id.
65
See United States v. Ivy, 929 F.2d 147, 152-53 (5th Cir. 1991).
66
Sanders Br. at 56.
67
ROA.1668.
68
ROA.1676.

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No. 15-31114

had killed both Suellen and L.R. 69 When Kelly asked Sanders why he killed
Suellen, Sanders replied that “he wanted to speak to an attorney before
answering that question.” 70 Kelly testified that he changed the subject and
did not repeat the question. 71 Sanders said that on Labor Day weekend, he,
Suellen, and L.R. were returning from an amusement park in Arizona and
driving on Interstate 20. 72 Sanders drove to a remote area off the highway so
they could shoot his .22 rifle. 73 Sanders admitted shooting Suellen once in
the head and leaving her body there. 74 He said L.R. witnessed him shooting
her mother. 75 Sanders drove L.R. on a several-day trip to Louisiana. 76
Sanders denied abusing or raping L.R. 77 When Kelly asked Sanders why he
killed L.R., Sanders stated that he wanted to speak to an attorney “before
answering that question.” 78 Because that was the second time that Sanders
had stated he wanted a lawyer before answering a particular question, Kelly
asked Sanders if he was “willing to answer all these other questions,” and
Sanders responded affirmatively. 79 Kelly then changed the subject and did
not again ask why Sanders had killed L.R. 80 Additionally, when Kelly asked

69
ROA.1682.
70
ROA.1682.
71
ROA.1682.
72
ROA.1682.
73
ROA.1683.
74
ROA.1683.
75
ROA.1683.
76
ROA.1684.
77
ROA.1684.
78
ROA.1684.
79
ROA.1685.
80
ROA.1685.

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Sanders what he did in Las Vegas, Sanders stated that he wanted to speak to
a lawyer before answering that question. 81 Kelly did not repeat that
question. 82 Kelly ended the interview by asking Sanders if he had ever killed
anyone else, and Sanders replied that he had not. 83 Sanders was then
transported to the FBI office to be processed into the system. 84
The next witness to testify at the suppression hearing was Ron Werby,
a criminal investigator with the Sheriff’s Department in Gulfport,
Mississippi, who had been assigned to the FBI Joint Task Force for several
years. 85 Werby testified that he was in the FBI vehicle while Kelly was
interviewing Sanders. 86 Werby testified that Kelly told Sanders: “[I]f you
want an attorney, you don’t want to talk anymore, we’ll stop the conversation
right now.” 87 Sanders responded: “No, I’ll answer your questions. I just
want to talk to an attorney about answering this one question as to why I killed
[L.R.]” 88 Toward the end of Kelly’s interview, Werby asked Sanders where
Suellen’s body was located. 89 Sanders replied that it was off “Interstate 20

81
ROA.1685-86.
82
ROA.1686.
83
ROA.1686.
84
ROA.1686.
85
ROA.1702.
86
ROA.1707.
87
ROA.1729.
88
ROA.1729.
89
ROA.1708.

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and about 20 miles to the west of Williams, Arizona.” 90 Sanders did not
recall the exit on Interstate 20. 91
Once the interview in the vehicle concluded, FBI Special Agent Steve
Callender drove Sanders and Werby to the FBI office. 92 While the agents
processed Sanders, Werby opened a map on the computer that showed
Williams, Arizona, and the surrounding area. 93 This second interview at the
FBI office was not recorded. Werby testified that Sanders “was very
interested in trying to help us find the body.” 94 After Sanders was processed,
he sat down at Werby’s computer, and Werby asked Sanders if he understood
his rights. 95 Sanders responded affirmatively. 96 Werby testified that Sanders
“was very willing” to look at the map and help locate Suellen’s body. 97
Sanders told Werby that the intersection off the interstate had a pile of
asphalt. 98 To help them in locating Suellen’s body, Werby called Special
Agent Jamie Newton, who worked in Flagstaff, Arizona. 99 Both Werby and
Sanders talked to Agent Newton. At one point, Sanders asked Werby about
L.R.’s body. 100 Werby described the condition of L.R.’s remains, and

90
ROA.1708.
91
ROA.1708.
92
ROA.1709.
93
ROA.1710.
94
ROA.1710.
95
ROA.1712.
96
ROA.1712.
97
ROA.1712.
98
ROA.1713.
99
ROA.1713.
100
ROA.1715-16.

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Sanders became “very upset and started crying.” 101 Sanders said that “she
didn’t deserve that.” 102 Sanders told Werby that L.R. became hysterical
after he killed her mother. 103 Sanders also told Werby that the gun he used
to kill them “was a piece of junk” and that he had to put a bullet in the gun’s
chamber every time he fired it. 104 Werby testified that they were unable to
find the exact exit on the interstate. 105 Werby also testified that Sanders
never requested to speak to an attorney while they were at the FBI office. 106
Sanders was later transported to a correctional facility. 107
The next witness at the hearing was Louisiana State Trooper William
Moore, who had been assigned to an FBI Task Force to investigate violent
crimes. 108 Moore testified that FBI Special Agent Ben Walsh called and
informed him that Sanders had been arrested. 109 Moore and Walsh drove to
a correctional facility in Mississippi to interview Sanders. 110 Moore had been
in communication with the Gulfport FBI agents and learned that Sanders
had been cooperative during his interview earlier that morning and had
confessed to the murders. 111 Moore testified that the purpose of their

101
ROA.1716.
102
ROA.1716.
103
ROA.1716.
104
ROA.1717.
105
ROA.1715.
106
ROA.1725.
107
ROA.1717.
108
ROA.1735.
109
ROA.1735-36.
110
ROA.1736.
111
ROA.1736-37.

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interview with Sanders was to locate Suellen’s body. 112 Prior to interviewing
Sanders, Moore testified that they advised him of his rights with a form. 113
Although Moore was aware that Sanders had waived his rights before the
previous interview, they wanted to make sure Sanders understood his rights.
Sanders acknowledged that he understood his rights and that he waived
them. 114 The form provided that Sanders had a right to stop the questioning
and the right to talk to a lawyer before any questioning. 115 Sanders signed the
waiver form, with Moore and Walsh as witnesses. 116 Sanders agreed to talk
with Moore and Walsh and did not indicate any reservations in doing so. 117
Moore testified that Sanders was coherent and cooperative. 118 Unlike the
previous two interviews, this interview was recorded, and Sanders was aware
of the recording. 119
The interview lasted about an hour and five minutes, and the “first
three-quarters of the time” involved Sanders relaying information over the
telephone to agents in Arizona in an attempt to locate Suellen’s body. 120
Moore testified that they used a computer to view maps, and Walsh used

112
ROA.1738.
113
ROA.1738-39.
114
ROA.1739.
115
ROA.1741.
116
ROA.1740.
117
ROA.1741.
118
ROA.1743.
119
ROA.1743-44.
120
ROA.1748.

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No. 15-31114

Google Maps on his cell phone. 121 Sanders drew a picture of the area around
the interstate exit to assist in finding it. 122
At around the forty-eight-minute mark of the recording, the phone call
with the Arizona agents was terminated. 123 Moore and Walsh began
questioning Sanders about the events that occurred over Labor Day
weekend. 124 Walsh then asked Sanders about his employment at a mattress
factory, and Sanders responded that he wanted to speak to an attorney. 125 As
a result, Walsh changed the subject of the interview. 126 At that point in
Moore’s testimony during the suppression hearing, defense counsel objected
to any more questions regarding the interview, asserting that the transcript
was the best evidence of the interview. 127 The magistrate judge agreed and
played the recorded interview in open court. 128 A transcript of the recorded
interview was also admitted into evidence under seal. 129
The magistrate judge subsequently issued a report and
recommendation denying the motion to suppress the statements. 130 With
respect to the first interview conducted by Agent Kelly, the magistrate judge
found that Sanders asked for an attorney before he would answer three

121
ROA.1749.
122
ROA.1750.
123
ROA.1753.
124
ROA.1753.
125
ROA.1754.
126
ROA.1754.
127
ROA.1754.
128
ROA.1754-55.
129
ROA.1746.
130
ROA.198-206.

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“specific questions: 1) why he killed Suellen, 2) why he killed [L.R.], 3) what

he had been doing while in Nevada.” 131 The magistrate judge further found
that each time that Sanders requested to talk to an attorney before answering
a particular question, Kelly honored his request by changing the subject. 132
The magistrate judge expressly rejected Sanders’s assertion that the agent
used the guise of clarification to persuade Sanders to continue to waive his
rights. 133 The magistrate judge found that “Agent Kelly was bending over
backwards to protect Sanders’s rights and to be absolutely sure that Sanders
wanted to continue talking about other things.” 134 Moreover, the magistrate
judge found that these “facts were corroborated by Investigator Werby.” 135
The magistrate judge concluded as follows:
Therefore, I find, by a preponderance of the evidence, that
each statement by Sanders that he wished to speak with a
lawyer before answering that particular question was
unambiguously directed to those particular questions only and
that Sanders was not requesting an attorney before continuing
with the interview. Sanders was very clear and specific in
indicating what areas of the interview he would and would not
discuss without a lawyer and there is no question in my mind
that his actions and choices were knowing and voluntary. 136

131
ROA.204.
132
ROA.204.
133
ROA.205.
134
ROA.205.
135
ROA.205.
136
ROA.205.

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The district court determined that the findings in the magistrate judge’s
report were correct and denied the motion to suppress. 137
As an initial matter, Sanders argues that because the first interview
was not recorded, we should assess Kelly’s and Werby’s testimony in light
of the subsequent recorded interview. 138 Although pre-invocation conduct is
a relevant consideration when evaluating whether an invocation was clear and
unambiguous, 139 we are not persuaded that a subsequent interview conducted
by different law enforcement officers is relevant. The magistrate judge “was
in the best position to weigh the credibility of the testimony” of Kelly and
Werby. 140 Accordingly, we “will not second guess the district court’s factual
findings as to the credibility of witnesses.” 141
With respect to the first interview, Sanders has failed to demonstrate
that the court’s factual findings are clearly erroneous. “A district court’s
denial of a motion to suppress should be upheld ‘if there is any reasonable
view of the evidence to support it.’” 142 As previously set forth, the district
court found that each time that Sanders requested to talk to an attorney
before answering a particular question, Agent Kelly honored his request by
changing the subject. This court has previously affirmed the denial of a
defendant’s motion to suppress in a similar situation. In United States v.

137
ROA.228.
138
Sanders Br. at 59.
139
Smith v. Illinois, 469 U.S. 91, 98 (1984).
140
United States v. Garza, 118 F.3d 278, 283 (5th Cir. 1997).
141
Id.
142
United States v. Sarli, 913 F.3d 491, 495 (5th Cir 2019) (quoting United States v.
Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc)).

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Ivy, 143 the district court denied a suppression motion, finding that the
defendant “was not asking for an attorney but was choosing at that time not
to talk about a particular area of inquiry until he talked to an attorney.” 144 We
noted that after the defendant “expressed his unwillingness to answer
questions about where he obtained materials to make a bomb,” the police
officer “honored this request by moving to a different subject.” 145 We held
that the district court’s interpretation of the defendant’s statement was not
clearly erroneous. 146
Similarly, in this case, both Kelly and Werby testified that Sanders’s
invocations of counsel were qualified. When Kelly asked Sanders why he
killed Suellen, Sanders stated that “he wanted to speak to an attorney before
answering that question.” 147 Sanders answered similarly when he was later
asked why he killed L.R. and again when asked about his experiences in
Nevada before the killings. 148 Each time, Kelly stopped questioning Sanders
about these topics and instead began inquiring into a new topic. 149 In light of
this evidence, the district court did not clearly err when it concluded that
Sanders’s invocations of counsel during his first interrogation were limited
to certain topics. Accordingly, all the statements Sanders made during his
first interview were admissible. Also, because Sanders did not make any

143
929 F.2d 147 (5th Cir. 1991).
144
Id. at 152.
145
Id. at 153.
146
Id.
147
ROA.1682 (emphasis added).
148
ROA.1684-86, 1725.
149
ROA.1682, 1684-86, 1725-30.

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requests for counsel during the second interview at the FBI office, his
statements made during that interview were admissible as well.
We now turn to the third interrogation, which was the recorded
interview conducted by Agent Walsh and Trooper Moore at a correctional
facility. 150 The first forty-eight minutes were spent obtaining information
from Sanders regarding where Suellen’s body was located. 151 After that,
Walsh and Moore began asking Sanders about his relationship with
Suellen. 152 The interview transcript demonstrates that Sanders was
cooperating and answering those questions. 153 Walsh then asked Sanders if
he had worked for a mattress company. 154 In response, Sanders stated, “Um,
I want to talk to a lawyer. Stop cussing me, but I want to talk to a lawyer.” 155
Walsh then asked: “About what?” 156 Sanders responded: “Before I answer
that question or anything to do with other people.” 157 Walsh replied that they
would stop asking those questions. 158 Walsh then immediately asked Sanders
if he would “still continue answering questions.” 159 Sanders responded that
he would “answer questions as long as you’re not talking about other
people.” 160 Walsh then asked if it was okay to ask questions about Suellen

150
ROA.5614.
151
ROA.1753, 1760.
152
ROA.5646.
153
ROA.5646-47.
154
ROA.5648.
155
ROA.5648. The transcript of the interview does not reveal any cursing.
156
ROA.5648.
157
ROA.5648.
158
ROA.5648.
159
ROA.5648.
160
ROA.5648.

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No. 15-31114

and L.R. 161 Sanders agreed, stating: “That’s them, you stay in that area,
that’s fine.” 162 The interview continued with Sanders responding to
questions about the trip to Arizona and the murder of Suellen. 163 Sanders
denied having an argument or altercation prior to shooting Suellen. 164 After
Sanders confessed to shooting Suellen, Walsh asked him what happened
next. 165 Sanders replied: “I made [L.R.] get in the car and we left. Pulled her
over up beside her in the car and we got into the car and we left. I need to
talk to a lawyer, that’s as far as I’m . . . we just um, we just left and we drove.
I didn’t know what to do.” 166 Sanders continued: “Um, I shot both of ‘em,
killed both of them, but the bottom line is what I’ll tell you and other than
that I need to talk to a lawyer on the other answers and stuff, I need questions
answered. Okay?” 167 Walsh replied: “Okay . . . that’s[] fair . . . I don’t want
to make you do something that you don’t want to do.” 168 Sanders then asked
if either state had the death penalty, and Walsh replied that he did not know
the answer. 169 Sanders reiterated that he needed to talk to a lawyer, and
Walsh terminated the interview. 170

161
ROA.5648.
162
ROA.5648.
163
ROA.5648-59.
164
ROA.5659.
165
ROA.5659.
166
ROA.5659.
167
ROA.5659.
168
ROA.5659.
169
ROA.5659.
170
ROA.5660.

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No. 15-31114

In the report and recommendation, the magistrate judge found

Sanders’s first invocation of counsel during the third interview was only with
respect to the question whether he had worked for a mattress company. 171
Unlike the first interview, however, Sanders did not limit his invocation to a
particular question. In the first interview, Sanders stated that “he wanted to
speak to an attorney before answering that question.” 172 Here, after Sanders
stated that he wanted to talk to an attorney, Walsh asked: “About what?” 173
Sanders responded: “Before I answer that question or anything to do with
other people.” 174 Walsh then asked Sanders if he would “still continue
answering questions.” 175 Sanders clarified that he would only answer
questions regarding Suellen and L.R. 176
Sanders’s invocation of his right to counsel was arguably
unambiguous. “[A] reasonable police officer” would have understood
Sanders’s statement “to be a request for an attorney.” 177 Walsh then asked
“[a]bout what,” and Sanders limited his invocation to certain topics.
However, “an accused’s postrequest responses to further interrogation may
not be used to cast retrospective doubt on the clarity of the initial request
itself.” 178 After Walsh asked Sanders “[a]bout what,” Sanders’s response
clarified that he was limiting his invocation of the right to counsel.

171
ROA.204-05.
172
ROA.1682 (emphasis added).
173
ROA.5648.
174
ROA.5648.
175
ROA.5648.
176
ROA.5648.
177
Davis v. United States, 512 U.S. 452, 459 (1994).
178
Smith v. Illinois, 469 U.S. 91, 100 (1984).

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Nonetheless, we cannot know whether Sanders would have limited his

invocation without the prompting question from Walsh. Because we are
confident that any error was harmless beyond a reasonable doubt, we will
assume without deciding for the purpose of this appeal that the district court
erred in finding the invocation limited. 179
Sanders does not expressly argue that the admission of his statements
requires reversal of his convictions. Instead, he argues that the government
used his statements during the penalty phase to attack his mitigation case,
“which emphasized acceptance of responsibility and impaired
functioning.” 180
More specifically, Sanders claims that the government used his
statements “as ‘proof of [his] memory and recollection of [the] day that he
killed Suellen’” in order to rebut his claims of cognitive and mental
impairments. 181 However, we have concluded that the following statements
were admissible: (1) statements from the first interview in the vehicle;
(2) statements from the second interview at the FBI office; and
(3) statements from the first forty-eight minutes of the third interview at the
correctional facility. The only inadmissible statements are those given after
the forty-eight-minute mark during the third interview. The statements
Sanders made during the first forty-eight minutes demonstrated that he could
remember a great deal about the day he murdered Suellen. 182 The same is
true for the statements Sanders made during the two prior interviews. From

179
See United States v. Cannon, 981 F.2d 785, 789-90 (5th Cir. 1993).
180
Sanders Br. at 57.
181
Sanders Br. at 66 (citing ROA.3368).
182
ROA.5617-48.

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No. 15-31114

this properly admitted evidence, the government was able to argue that
Sanders could remember more about his crimes than he otherwise suggested.
Sanders also argues that the government capitalized on his refusal to
explain why he committed the crimes to demonstrate he “lacked remorse for
his actions.” 183 During the first interview, Sanders refused to answer when
he was asked why he killed Suellen and L.R. Dr. Thompson testified that it
was his opinion that Sanders remembered why he killed Suellen and L.R., but
Sanders did not want to answer the question. 184 Based on Dr. Thompson’s
testimony, the government was able to argue that Sanders was unwilling to
discuss why he killed either victim. A reasonable inference from this
testimony is that Sanders was not remorseful.
In sum, the most that can be said of Sanders’s inadmissible statements
is that they were cumulative of other properly admitted evidence. Admission
of his statements “did not influence the jury, or had but very slight effect”
on its analysis. 185 Sanders is not entitled to a new trial.
IV
Sanders asserts he was charged with two crimes and was sentenced
twice for one act in violation of the Double Jeopardy Clause of the Fifth
Amendment, as explicated in Blockburger v. United States. 186 “We review the
district court’s denial of a motion to dismiss an indictment on double

183
Sanders Br. at 66.
184
ROA.3314, 3328 (“I do think that he remembers and that he could tell the story
of why if he wanted to tell the story.”).
185
Kotteakos v. United States, 328 U.S. 750, 764 (1946).
186
284 U.S. 299 (1932).

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No. 15-31114

jeopardy grounds de novo and accept the underlying factual findings of the
district court unless clearly erroneous.” 187
The Fifth Amendment prohibits “an individual from being subjected
to the hazards of trial and possible conviction more than once for an alleged
offense.” 188 Sanders has been subjected to only one trial, so his right to be
free from multiple trials for the same offense is not at issue. 189 His complaint
is two-fold. He contends that he cannot be subjected to two punishments for
the same crime. He also contends that even if this court invalidates his
conviction based on Count Two, we must remand for resentencing because
being charged with two counts that were potentially punishable by death
“implicated the reliability of the proceeding under the Eighth Amendment
and 18 U.S.C. §3593(c).” 190 He essentially argues that “because jurors may
get the faulty impression that just because there are two counts, the crime is
worse or the defendant more culpable—and therefore more deserving of
death.” 191 He made similar arguments in another section of his brief
regarding a different issue that we do not reach in this appeal. 192

187
United States v. Jones, 733 F.3d 574, 579-80 (5th Cir. 2013) (italics omitted)
(quoting United States v. Gonzalez, 76 F.3d 1339, 1342 (5th Cir. 1996)).
188
Missouri v. Hunter, 459 U.S. 359, 365 (1983) (quoting Burks v. United States, 437
U.S. 1, 11 (1978)).
189
See id. (“Because respondent has been subjected to only one trial, it is not
contended that his right to be free from multiple trials for the same offense has been
violated.”).
190
Sanders Br. at 54-56.
191
Sanders Br. at 54.
192
Sanders Br. at 49 (“More counts may prejudice the jury against the defendant
by creating the impression of more criminal activity. . . . There is no other way to be sure
that the unlawful conviction did not ‘skew[]’ the weighing process, putting a
‘thumb . . . [on] death’s side of the scale.’” (quoting Stringer v. Black, 503 U.S. 222, 232
(1992))).

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The commutation of Sanders’s death sentences to life sentences

without possibility of parole has mooted his contention that the penalty phase
of his trial was tainted and resentencing is required. The only sentencing
options before the jury were a death sentence or a life sentence without
possibility of parole for each of Counts One and Two. 193 Sanders does not
contend that he is or would have been eligible for a sentence other than life
without possibility of parole but for a double jeopardy violation. We therefore
consider only whether one of his two sentences to life without possibility of
parole must be invalidated due to a double jeopardy violation.
The Supreme Court held in Blockburger that the government is
prohibited from charging a defendant in a single trial with “two distinct
statutory provisions” for the “same act or transaction” unless “each
provision requires proof of a fact which the other does not.” 194 An
indictment violating Blockburger’s requirements is said to be
multiplicitous. 195 However, the Supreme Court has repeatedly explained
that “[t]he question of what punishments are constitutionally permissible is
no[t] different from the question of what punishment[s] the Legislative
Branch intended to be imposed. Where Congress intended . . . to impose
multiple punishments, imposition of such sentences does not violate the
Constitution.” 196 If the cumulative punishment is authorized by the
legislature, it does not run afoul of the Double Jeopardy Clause. If the
legislature authorizes cumulative punishment, even if the statutes fail the

193
See, e.g., ROA.3410 (penalty phase jury instructions).
194
Blockburger v. United States, 284 U.S. 299, 304 (1932).
195
See United States v. Nguyen, 28 F.3d 477, 482 (5th Cir. 1994).
196
Missouri v. Hunter, 459 U.S. 359, 368 (1983) (emphasis omitted) (quoting
Albernaz v. United States, 450 U.S. 333, 344 (1981)).

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No. 15-31114

Blockburger test, “the prosecutor may seek and the trial court or jury may
impose cumulative punishment under such statutes in a single trial.” 197
Sanders’s indictment charged him with one count of interstate
kidnapping resulting in death under 18 U.S.C. § 1201(a), and one count
under 18 U.S.C. § 924(c)(1)(A) and (j)(1) for murdering a person through the
use of a firearm during a crime of violence. 198 The charge of kidnapping
under § 1201(a) served as the predicate crime of violence for the § 924
offense. 199 The district court observed that the § 924(j) offense required
proof of intent to murder and use of a firearm, while the § 1201(a) offense did
not. 200 However, as a predicate offense, the kidnapping charge did not
require proof of a fact that § 924 did not. Accordingly, the offenses fail the
elements test under Blockburger.
We therefore must determine whether Congress authorized
cumulative punishment for violations of § 1201(a) and § 924(c)(1)(A) and
(j)(1). The district court concluded that Congress did authorize cumulative
punishment. 201
In United States v. Singleton, 202 this court held that charging a
defendant with both a crime of violence and a violation of § 924(c) does not
violate the Double Jeopardy Clause. 203 Our analysis turned on the fact that
§ 924(c) requires cumulative punishment, and the statute therefore made

197
Id. at 369.
198
ROA.97-100.
199
ROA.98.
200
ROA.849-50.
201
ROA.850-51.
202
16 F.3d 1419 (5th Cir. 1994).
203
Id. at 1429.

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clear that Congress intended “to punish cumulatively” a § 924(c) violation

and the underlying predicate offense. 204 However, Singleton is not on point
because § 924(j), unlike § 924(c), does not expressly require cumulative
punishment.
Relying on this court’s opinion in United States v. Gonzales, 205 Sanders
asserts that § 924(j)(1) does not authorize cumulative punishment for his two
convictions. 206 He points to this court’s statement that “[t]he express
language demonstrating the legislature’s intent for cumulative punishment is
absent in section 924(j).” 207 Despite this language, we are not convinced that
Gonzales controls the instant case. In Gonzales, we addressed whether
charging a defendant with subsections 924(c) and (j) as two separate counts for
the same act violated double jeopardy. 208 We recognized that those two
subsections of the statute failed the Blockburger test. 209 We also distinguished
Gonzales’s offenses from those in Singleton. We explained that Gonzales’s
convictions were two subsections of one statute, whereas in Singleton, there
were convictions pursuant to two separate statutes. 210 We concluded that
two convictions under subsections of the same statute made it “less likely
that Congress intended sentences for subsections 924(c) and (j) to be
imposed for the same conduct, especially absent any express textual evidence

204
Id. at 1425.
205
841 F.3d 339 (5th Cir. 2016).
206
Sanders Br. at 53.
207
Sanders Br. at 53 (quoting Gonzales, 841 F.3d at 357).
208
Gonzales, 841 F.3d at 354.
209
Id. at 354-58.
210
Id. at 357.

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No. 15-31114

of such a desire.” 211 Ultimately, we followed the prevailing view of the

circuits and held that “there is insufficient indication that Congress intended
sentences to be imposed under both subsection 924(j) and the lesser included
offense of subsection 924(c) for the same conduct to overcome the
Blockburger presumption.” 212
The Supreme Court subsequently addressed the interplay between
subsections 924(c) and 924(j), holding in Lora v. United States 213 that the
latter permitted, but did not require, a district court to impose a sentence
under § 924(j) to run consecutive to another sentence. 214 In Lora, the
defendant was convicted of “aiding and abetting a violation of § 924(j)(1)”
and also of “conspiring to distribute drugs, in violation of 21 U.S.C. §§ 841
and 846.” 215 The district court held that it lacked discretion to impose the
defendant’s § 924(j)(1) sentence to run concurrently with the sentence
imposed for the drug conspiracy conviction. The Supreme Court held the
district court erred in this regard, explaining that “[b]ecause the consecutive-
sentence mandate in § 924(c)(1)(D)(ii) does not govern § 924(j) sentences,
the District Court had discretion to impose Lora’s § 924(j) sentence
concurrently with another sentence.” 216 The Supreme Court stated
specifically “that subsection (j) permits flexibility to choose between
concurrent and consecutive sentences.” 217

211
Id.
212
Id. at 358.
213
599 U.S. 453 (2023).
214
See id. at 455, 464.
215
Id. at 455.
216
Id. at 464.
217
Id. at 463.

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In Lora, the Supreme Court discussed the Double Jeopardy Clause,

but in a different context from that raised by Sanders in the present appeal.
In Lora, the Government argued that “a defendant may be punished for either
a Section 924(c) offense or a Section 924(j) offense, but not both.” 218 The
Supreme Court “express[ed] no position” on this view. 219
We note that several decisions from other circuits seem to be in
conflict with Lora regarding the interplay between § 924(c) and § 924(j). 220
We do not rely on those decisions. The Supreme Court made clear in Lora
that “Congress plainly chose a different approach to punishment in
subsection (j) than in subsection (c).” 221 We conclude that the express
authorization of cumulative sentences in § 924(c) is not part of § 924(j).
Both § 924(j) and § 1201(a) authorize a sentence of life imprisonment
or death. However, it is not clear from either of these statutes that Congress
intended the punishment under either to be cumulative (consecutive). The
Supreme Court explained in Whalen v. United States that “where the offenses
are the same under [the Blockburger] test, cumulative sentences are not

218
Id. at 461.
219
Id.
220
See United States v. Berrios, 676 F.3d 118, 138-44 (3d Cir. 2012), abrogated by
Lora v. United States, 599 U.S. 453 (2023); United States v. Bran, 776 F.3d 276, 280-82 (4th
Cir. 2015), abrogated by Lora v. United States, 599 U.S. 453 (2023); see also United States v.
Dinwiddie, 618 F.3d 821, 837 (8th Cir. 2010) (applying plain error review); United States v.
Battle, 289 F.3d 661, 665-69 (10th Cir. 2002) (applying plain error review), overruled on
other grounds by United States v. Melgar-Cabrera, 892 F.3d 1053, 1060 & n.3 (10th Cir. 2018);
United States v. Allen, 247 F.3d 741, 769 (8th Cir. 2001) (“Congress fully and clearly
intended to permit cumulative punishments for violations of [a predicate offense statute]
and § 924(j).”), vacated on other grounds, 536 U.S. 953 (2002); United States v. Ventura, 742
F. App’x 575, 579 (2d Cir. 2018), abrogated by Lora v. United States, 599 U.S. 453 (2023).
221
Lora, 599 U.S. at 462.

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No. 15-31114

permitted, unless elsewhere specially authorized by Congress.” 222 We

therefore conclude that Sanders’s two sentences do violate the Double
Jeopardy Clause. Accordingly, we vacate Sanders’s sentence based on his
conviction under § 924(j).
V
Sanders contends that African-Americans and young adults were
excluded from the grand and petit jury venires in violation of due process,
equal protection, the Sixth Amendment’s “fair cross-section” requirement,
and the Jury Service and Selection Act. 223 Relatedly, we consider whether
the district court abused its discretion when it denied Sanders’s request for
discovery regarding the composition of the jury venires. We review the
district court’s factual findings for clear error and its legal conclusions de
novo. 224
With respect to Sanders’s due process and equal protection
challenges to the venires, Sanders concedes that there was no “proof of
intentional discrimination” and that Supreme Court precedent precludes
relief under this theory. 225 He raises these two arguments to preserve them
for review by the Supreme Court.

222
445 U.S. 684, 693 (1980).
223
Sanders Br. at 68; 28 U.S.C. §§ 1861-63.
224
See United States v. McKinney, 53 F.3d 664, 670 (5th Cir. 1995) (reviewing a
factual determination for clear error); United States v. Hemmingson, 157 F.3d 347, 358 (5th
Cir. 1998) (“[T]o the extent the decision rests on the court’s interpretation of the Act’s
language, the standard of review is de novo.” (italics omitted)).
225
Sanders Br. at 82 (first citing Swain v. Alabama, 380 U.S. 202, 203-05 (1965),
overruled on other grounds by Batson v. Kentucky, 476 U.S. 79 (1986); and then citing
McCleskey v. Kemp, 481 U.S. 279, 292 (1987)).

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We next turn to his argument that the jury venires were not selected
from a fair cross-section of the community in violation of the Sixth
Amendment. To make a prima facie showing of this claim, a defendant must
demonstrate:
(1) that the group alleged to be excluded is a “distinctive”
group in the community; (2) that the representation of this
group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection
process. 226
Sanders contends that young adults were improperly excluded from
his venires. 227 Sanders’s grand jury was empaneled in 2010 and drawn from
a master jury wheel that was filled in 2007. 228 In 2014, Sanders’s petit jury
was drawn from a master jury wheel that was filled in 2011. 229 Because the
master wheels were three years old, people roughly between the ages of
eighteen and twenty-one were unable to serve on either of Sanders’s juries.
In United States v. Gooding, 230 we held that a jury plan’s exclusion of young
citizens between eighteen and twenty-one years old does not violate the fair
cross-section requirement. 231 We rejected the claim that “those who have
become eligible for jury service by attaining voting age within the last three
years and four months” constitute a distinct group such that “their

226
Duren v. Missouri, 439 U.S. 357, 364 (1979).
227
Sanders Br. at 68.
228
ROA.833.
229
ROA.1280, 1290.
230
473 F.2d 425 (5th Cir. 1973).
231
Id. at 429-30.

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temporary exclusion from jury service violates their statutory right to serve
on juries or [the] defendant’s right to a fair trial.” 232 Sanders has failed to
establish the first prong of the prima facie case—that this group is distinctive
within the community. Although Sanders invites us to reconsider our
holding in Gooding, we are not free to do so in the absence of an intervening
change of precedent. 233
With respect to Sanders’s challenge to the grand and petit venires
based on the alleged exclusion of African-Americans, our precedent makes
clear that they qualify as a distinctive group within the community under the
first prong of the prima facie case. 234 However, the parties dispute whether
African-Americans were sufficiently underrepresented, the second prong of
the prima facie case.
We first consider the grand jury venire. To determine whether a
defendant has shown that the representation of a group is not fair and
reasonable, we measure the absolute disparity between the proportion of
jury-eligible African-Americans in the community and their representation
on the venire. 235 The district court used the 2013 Clerk of Court’s AO12
Statistics Report, which provided that African-Americans constituted 32% of
the community and 23.35% of the qualified jury wheel. 236 The district court

232
Id. at 430.
233
United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014).
234
United States v. Williams, 264 F.3d 561, 568 (5th Cir. 2001).
235
See Berghuis v. Smith, 559 U.S. 314, 323 (2010) (explaining how to calculate
absolute disparity); United States v. Maskeny, 609 F.2d 183, 190-91 (5th Cir. 1980) (relying
on absolute disparity in resolving challenges to representation of distinctive groups on jury
venires).
236
ROA.567-68 (dated 8/28/2013).

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found that there was an absolute disparity of 8.65%. 237 Contrary to Sanders’s
argument, 238 the district court did not find that the estimates from the census
should be used in place of the actual census data. 239 Instead, the district court
held that even if Sanders’s own estimates showing a disparity of 10.81% were
used, it would not find that 10.81% disparity sufficient to satisfy the second
prong. 240 We agree with the district court that a 10.81% disparity offers
Sanders no relief. This court has found that absolute disparities of 10% and
11% failed to satisfy the second prong of the prima facie case. 241 Because
Sanders failed to satisfy the second prong, we need not consider the third
prong of the prima facie case—whether the existing disparity was the result
of systematic exclusion.
We now turn to the claim that African-Americans were
underrepresented on the petit jury venire. To determine whether Sanders
had made a showing with respect to the second prong of the prima facie case,
the district court used the 2012 Clerk of Court’s AO12 Statistics Report,
which provided that African-Americans constituted 29.4% of the community
and 18.12% of the qualified jury wheel. 242 The absolute disparity was
therefore 11.28%. We have “recognized that absolute disparities of 19.7%,

237
ROA.836-37.
238
Sanders Br. at 70.
239
ROA.837.
240
ROA.837-38.
241
Mosley v. Dretke, 370 F.3d 467, 479 (5th Cir. 2004) (“This Court has also
recognized that absolute disparities of 10% or less are insufficient to establish statistical
discrepancies worthy of relief.” (citing United States v. Maskeny, 609 F.2d 183, 190 (5th
Cir. 1980))); Thompson v. Sheppard, 490 F.2d 830, 832-34 (5th Cir. 1974) (affirming a
district court judgment that had resulted in the compilation of a new jury list with an 11%
disparity).
242
ROA.1019-20 (dated 2/24/2012).

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14.7% and 13.5% are sufficient to satisfy this prong.” 243 However, as stated
above, this court has found that absolute disparities of 10% and 11% failed to
satisfy the second requirement of the prima facie case. Here, the 11.28%
disparity is only marginally different from the 11% disparity this court found
insufficient to meet the second prong. 244 We are not persuaded that a
disparity of 11.28% is sufficient to satisfy the second prong when 11% is not.
Because Sanders fails to satisfy the second prong, we need not consider the
third prong. Accordingly, Sanders has failed to show a violation of the Sixth
Amendment’s fair cross-section requirement.
Sanders further argues that he is entitled to relief under the Jury
Service and Selection Act. 245 The Act ensures “the right to grand and petit
juries selected at random from a fair cross section of the community in the
district or division wherein the court convenes.” 246 To obtain relief, Sanders
“must prove a ‘substantial failure’ to comply with the Act’s provisions.” 247
Specifically, he must demonstrate noncompliance with the Act “that
destroys the random nature or objectivity of the selection process.” 248
Sanders fails to make such a showing.
Sanders’s arguments mirror the arguments he raised to demonstrate
a violation of the Sixth Amendment’s fair cross-section requirement. He
faults the jury-selection procedures insofar as using “voter registration lists

243
Mosley, 370 F.3d at 479.
244
Thompson, 490 F.2d at 832-34.
245
Sanders Br. at 77.
246
28 U.S.C. § 1861.
247
United States v. Olaniyi-Oke, 199 F.3d 767, 772 (5th Cir. 1999) (quoting United
States v. Hemmingson, 157 F.3d 347, 358 (5th Cir. 1998)).
248
Id.

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produced a statistically significant [underrepresentation] of African-

American jurors,” and “[r]econstituting the juror list only every four years”
negatively impacted the number of African-Americans and young citizens
eligible to serve as jurors. 249 However, the Act expressly allows the selection
of jurors based on voter registration rolls and authorizes refilling the master
jury wheel every four years. 250 Sanders’s arguments that these specific,
statutorily authorized features of the district court’s jury-selection plan
violated the Act are therefore unconvincing. This claim fails to merit relief.
Finally, Sanders contends that the district court erred in denying his
motion for discovery. 251 We review rulings on discovery for abuse of
discretion. 252 Sanders requested documents in the government’s possession
concerning the composition of each venire. He argues that the government
had discoverable information in light of its then-ongoing civil suit against the
State of Louisiana for violations of the National Voter Registration Act. 253
We decline to hold that the district court abused its discretion because any
information in the government’s possession would only have been relevant
insofar as it could have shed light on whether any racial disparity was “due
to systematic exclusion of [African-Americans from] the jury-selection
process,” which is the third prong of the prima facie case. 254 As discussed,
because Sanders failed to satisfy the first prong with respect to young people
and the second prong with respect to African-Americans, we do not need to

249
Sanders Br. at 70.
250
28 U.S.C. § 1863(b)(2), (4).
251
Sanders Br. at 72.
252
United States v. Conn, 657 F.3d 280, 284 (5th Cir. 2011) (per curiam), abrogated
on other grounds by Davis v. United States, 589 U.S. 345 (2020) (per curiam).
253
Sanders Br. at 74.
254
Duren v. Missouri, 439 U.S. 357, 364 (1979).

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reach the third prong. With no need for this discovery, Sanders has failed to
show that the district court abused its discretion in denying his request.
VI
Sanders asserts that the district court erred in death-qualifying the
jury. Death-qualifying is removing for cause “prospective jurors whose
opposition to the death penalty is so strong that it would prevent or
substantially impair the performance of their duties as jurors at the
sentencing phase of the trial.” 255 Sanders argues that: (1) death-qualifying a
jury is not authorized by federal law or common law; (2) death-qualification
violates the Sixth Amendment’s fair cross-section requirement; and
(3) death-qualification violates the First Amendment. 256
As to his first argument, Sanders contends that the regulation of
challenges for cause is left to the common law or to federal statutes. 257 He
argues that the Supreme Court allowed death-qualification in state court
cases only after state legislatures had authorized the practice. 258 He contends
that because neither the common law nor Congress has authorized the
practice, the district court erred in death-qualifying the jury over his
objection. 259 However, as the government notes, 28 U.S.C. § 1866(c)(2)
permits courts to excuse jurors who “may be unable to render impartial jury
service.” In Wainwright v. Witt, 260 the Supreme Court explained that an
impartial jury consists of “jurors who will conscientiously apply the law and

255
Lockhart v. McCree, 476 U.S. 162, 165 (1986).
256
Sanders Br. at 83.
257
Sanders Br. at 85.
258
Sanders Br. at 84-85.
259
See Sanders Br. at 85-86.
260
469 U.S. 412 (1985).

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find the facts.” 261 The Court rejected the proposition that a defendant who
is being tried for a capital crime “is entitled to a legal presumption or
standard that allows jurors to be seated who quite likely will be biased in his
favor.” 262 The Court made clear that the “proper standard for determining
when a prospective juror may be excluded for cause because of his or her
views on capital punishment . . . is whether the juror’s views would ‘prevent
or substantially impair the performance of his duties as a juror in accordance
with his instructions and his oath.’” 263 The reasoning espoused in Witt,
when coupled with the enabling language in § 1866(c), allows district courts
to death-qualify juries in federal cases. The district court did not err in
determining whether the prospective jurors’ views on capital punishment
would prevent or substantially impair the performance of their duties in
accordance with their instructions and oath.
With respect to the second argument, Sanders recognizes that in
Lockhart v. McCree, 264 the Supreme Court rejected the argument that death-
qualification of a jury violated the Sixth Amendment’s fair cross-section
requirement. 265 Nevertheless, he contends that there is now empirical
evidence that demonstrates that excluding prospective jurors who do not
believe in the death penalty is excluding members of protected classes such
as women and racial minorities. 266 Sanders states that this evidence was
unavailable over thirty years ago at the time of the Supreme Court’s decision.

261
Id. at 423.
262
Id.
263
Id. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).
264
476 U.S. 162 (1986).
265
Sanders Br. at 87 (citing Lockhart, 476 U.S. at 165).
266
Sanders Br. at 87.

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We note that more recently, in 2011, relying on Lockhart, we rejected this

argument. 267 We may not overrule the decision of a prior panel in the absence
of en banc consideration or a superseding Supreme Court decision. 268 We
are bound by both Supreme Court and Fifth Circuit precedent and must deny
relief on this claim.
Finally, Sanders argues that death-qualifying the jury “infringes on
freedom of religion.” 269 Sanders contends that the district court erred in
including questions about prospective jurors’ religious beliefs on its jury
questionnaire and during voir dire. District courts are afforded “great
latitude in deciding what questions should be asked on voir dire.” 270 Here,
the questionnaire asked whether the prospective jurors’ religion had a
“position on the propriety of . . . the death penalty.” 271 In United States v.
Whitfield, 272 this court held that a district court does not abuse its discretion
when it excuses a prospective juror because “her religious beliefs prevented
her from passing judgment on others.” 273 Although Whitfield was not a
capital case, the Supreme Court has made clear that empaneling an impartial
jury is grounded in the Sixth Amendment and not the Eighth Amendment. 274
If a prospective juror’s religious beliefs would prevent the person from

267
United States v. Simpson, 645 F.3d 300, 312 (5th Cir. 2011) (“Death penalty
opponents are not a ‘distinctive group,’ and ‘death qualification does not violate the fair-
cross-section requirement.’” (quoting Lockhart, 476 U.S. at 177)).
268
United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002).
269
Sanders Br. at 89.
270
Mu’Min v. Virginia, 500 U.S. 415, 424 (1991) (italics omitted).
271
ROA.5665.
272
590 F.3d 325 (5th Cir. 2009).
273
Id. at 360.
274
Wainwright v. Witt, 469 U.S. 412, 423 (1985).

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impartially applying the law, the district court has discretion to excuse that
person. 275 Sanders has failed to show that the district court abused its
discretion in inquiring how a prospective juror’s religious beliefs would
impact the juror’s ability to follow the law in this capital case.
VII
Sanders contends that the district court erred in granting the
government’s motion to strike a venire member for cause based solely on her
answers to the juror questionnaire without any voir dire. 276 The district court
struck her based on her views regarding the death penalty. 277 As previously
discussed, a “court may strike jurors for cause if their views on capital
punishment would ‘prevent or substantially impair’ the performance of their
duties ‘in accordance with the instruction[s] and oath.’” 278 Sanders objected
to the court’s granting the motion to strike the venire member. 279
This court reviews “such claims for abuse of discretion, affording
‘considerable deference’ to the trial court.” 280 Relying on a Tenth Circuit
opinion, Sanders asserts that this claim should be reviewed de novo because
the exclusion of the venire member was based on written answers to a juror

275
Id.
276
Sanders Br. at 92.
277
ROA.3476.
278
United States v. Fields, 483 F.3d 313, 357 (5th Cir. 2007) (quoting United States
v. Webster, 162 F.3d 308, 340 (5th Cir. 1998)).
279
ROA.3476. This was the only venire member the court struck prior to voir dire
based on the government’s objection. The district court also granted the defense’s for-
cause challenges to three venire members based solely on their questionnaire responses.
ROA.6196.
280
Fields, 483 F.3d at 357 (quoting United States v. Bernard, 299 F.3d 467, 474 (5th
Cir. 2002)).

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questionnaire without any voir dire. 281 As Sanders recognizes, other circuits
have held that the abuse-of-discretion standard applies even when the
exclusion is made without any voir dire. 282 We need not determine which
standard of review applies because we are not persuaded that the district
court erred under either one.
Sanders asserts that the venire member’s answers did not
demonstrate that the venire member would automatically choose a life
sentence. 283 However, we have stated that a “district court is not limited to
disqualifying only those jurors who would never vote for the death penalty
but can excuse those who cannot set aside their own predilections in
deference to the rule of law.” 284
On the morning of the first day of jury selection, the district court
explained that it had sustained the government’s challenge to the instant
venire member because the “person’s answers appeared to be rather off the
wall.” 285 The court further stated that the “particular emphasis on religion
that she had in her answers and her general views with regard to the death
penalty and, finally, her statement here that her son was killed and she felt it
was a cover-up” were “bizarre.” 286

281
Sanders Br. at 93 (citing United States v. Chanthadara, 230 F.3d 1237, 1269-70
(10th Cir. 2000)).
282
United States v. Quinones, 511 F.3d 289, 302-04 (2d Cir. 2007); United States v.
Purkey, 428 F.3d 738, 750 (8th Cir. 2005).
283
Sanders Br. at 93.
284
United States v. Flores, 63 F.3d 1342, 1356 (5th Cir. 1995) (citation omitted).
285
ROA.3476.
286
ROA.3476.

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On the questionnaire, the venire member’s answers provided that it

was God’s “job” to judge—not man’s. 287 Referring to the Bible, she wrote
that it says thou shalt not kill. 288 Her view was that executing a person
because he had killed someone was just as wrong as the initial murder. 289 Her
answers also indicated that she was skeptical of the criminal justice system
and thought it had unjustly treated her brother. 290 She stated that her son
had been killed, and she believed there was a cover-up. 291 When the
questionnaire asked if she could be a fair and impartial juror after hearing
graphic testimony and viewing photographs of injuries from a violent crime,
she checked “maybe” and wrote that it depended on the evidence and if the
defendant had been “set up.” 292 When asked whether she could follow the
court’s instructions not to allow sympathy, bias, or prejudice to enter into the
jury’s deliberations with respect to whether the defendant was guilty, she
wrote, “I don’t know.” 293
We are persuaded that the venire member’s answers demonstrated
that she would have had difficulty or would have been unable to follow the
court’s instructions. The venire member’s answers to the questionnaire
demonstrated that she had views on the death penalty that would have
prevented or substantially impaired the performance of her duties in

287
ROA.5665.
288
ROA.5665.
289
ROA.5665.
290
ROA.5670.
291
ROA.5668.
292
ROA.5675.
293
ROA.5675.

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accordance with the court’s instructions and her oath. Sanders has not
shown that the district court erred in striking this venire member for cause.
VIII
Sanders argues that the evidence was insufficient to support the
kidnapping verdict because the government presented no evidence of any
purpose for the abduction of L.R. 294 Sanders preserved this argument before
the district court. 295 We review challenges to the sufficiency of the evidence
de novo, viewing the evidence in the light most favorable to the
prosecution. 296
Sanders was convicted of kidnapping in violation of 18 U.S.C.
§ 1201(a), which provides in relevant part that:
Whoever unlawfully . . . kidnaps . . . and holds for ransom or
reward or otherwise any person . . . when the person is willfully
transported in interstate or foreign commerce . . . shall be
punished by imprisonment for any term of years or for life and,
if the death of any person results, shall be punished by death or
life imprisonment.
Sanders argues that the government failed to prove the element of held for
“ransom, reward or otherwise” under the kidnapping statute. 297 More
specifically, he contends that the government failed to submit any evidence
of the purpose of, or the benefit derived from, the kidnapping. 298 This court
has explained that the holding of the victim is the gravamen of the element

294
Sanders Br. at 102.
295
ROA.2327-30.
296
United States v. Njoku, 737 F.3d 55, 62 (5th Cir. 2013).
297
Sanders Br. at 102.
298
Sanders Br. at 103.

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and “not the benefit.” 299 We explained that the Supreme Court has
“interpreted the ‘or otherwise’ . . . to encompass any benefit a captor might
attempt to receive” and that the purpose did not have to be illegal. 300
“Although the government must plead and prove that the defendant held the
victim for some purpose, the exact nature of that purpose is inconsequential.
Indeed, . . . any purpose will do.” 301 Further, the jury is not required to
unanimously agree on the purpose for the kidnapping. 302
Sanders argues that the only relevant evidence in the record stems
from the police’s questioning him regarding his motive for kidnapping, and
he responded that he did not know what to do. 303 He argues there is no
evidence regarding the purpose of the kidnapping. We are not persuaded by
this argument. The jury was free to infer from the evidence that Sanders
kidnapped L.R. because she was the only witness to her mother’s murder.
The government contends that Sanders’s driving away in the aftermath of
the murder gained him distance and time to determine what he would do with
L.R. 304 The fact that he murdered L.R. at the end of the road trip confirms
that Sanders had a purpose for the kidnapping. Sanders’s argument would
require that a defendant confess his motive in order for a jury to convict him
of kidnapping the victim. We are satisfied that the evidence showed Sanders
kidnapped L.R. for a purpose. His argument is wholly without merit.

299
United States v. Webster, 162 F.3d 308, 328 (5th Cir. 1998).
300
Id. (citing Gooch v. United States, 297 U.S. 124, 128 (1936)).
301
Id. at 329.
302
Id. at 329-30.
303
Sanders Br. at 104.
304
Government Br. at 81.

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Sanders also contends that the evidence is insufficient to support the

three statutory aggravating factors found by the jury 305—those being, (1) the
death of L.R. occurred during the commission of a kidnapping; (2) the
offense involved substantial planning and premeditation; and (3) L.R. was
particularly vulnerable due to her youth. 306 “[A] defendant is not death
eligible unless the sentencing jury also finds that the Government has proved
beyond a reasonable doubt at least one of the statutory aggravating factors set
forth at [18 U.S.C.] § 3592.” 307 Because it is unclear whether the
commutation of Sanders’s death sentences to life sentences without parole
mooted Sanders’s contentions, we consider them.
The government asserts that Sanders did not object in the district
court to the insufficiency of the evidence to support any of the three statutory
aggravating factors, and thus, these claims should be reviewed for plain
error. 308 Because Sanders does not dispute the government’s assertion in his
reply brief, and because we have found no such objection in the record, we
review these claims for plain error.
This court reviews “jury findings of aggravating factors by asking
whether, after viewing the evidence in a light most favorable to the
government, any rational trier of fact could have found the existence of the
aggravating circumstance beyond a reasonable doubt.” 309 For the jury to find
the first factor, the government was required to prove that the death of L.R.

305
Sanders Br. at 106.
306
ROA.1613-14.
307
Jones v. United States, 527 U.S. 373, 376-77 (1999) (citing 18 U.S.C. § 3593(e)).
308
Government Br. at 103.
309
United States v. Bernard, 299 F.3d 467, 481 (5th Cir. 2002).

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occurred during the commission of a kidnapping. 310 As set forth above, the
evidence was sufficient to show that the death of L.R. occurred during a
kidnapping in violation of 18 U.S.C. § 1201(a). Sanders has failed to show
plain error.
For the second factor, the government was required to prove the
offense involved substantial planning and premeditation. 311
[A] killing is ‘premeditated’ when it is the result of planning or
deliberation. The amount of time needed for premeditation of
a killing depends on the person and the circumstances. It must
be long enough for the killer, after forming the intent to kill, to
be fully conscious of that intent. 312
The evidence at trial established that, just prior to leaving on the Labor Day
weekend trip with Suellen and L.R., Sanders purchased ammunition for his
rifle. He packed his rifle, the newly purchased ammunition, and a knife for
the trip. After killing Suellen, Sanders confessed that he “made [L.R.] get in
the car and we left.” 313 The evidence showed that Sanders drove L.R. in
Suellen’s car for three or four days across several states until he decided what
to do with her. He took her to a remote area that was not far from his
childhood home. 314 There, he used the rifle and the knife he had packed to
kill L.R. He shot L.R. in the head three times and once in the chest. The
evidence showed that the rifle required reloading after each shot. After
shooting her four times, he violently slit her throat with the knife he had

310
18 U.S.C. § 3592(c)(1).
311
Id. § 3592(c)(9).
312
See United States v. Snarr, 704 F.3d 368, 392 (5th Cir. 2013) (quoting United
States v. Agofsky, 516 F.3d 280, 282 n.2 (5th Cir. 2008)).
313
ROA.5777.
314
ROA.2144, 2780-81.

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packed. Sanders asserts that although the evidence may be sufficient to show
substantial planning for the murder of Suellen, the evidence is insufficient to
show substantial planning for the kidnapping and murder of L.R. 315 We
disagree. Based on the evidence before it, the jury could rationally infer
planning and premeditation with respect to the kidnapping and murder of
L.R. Viewing this evidence in the light most favorable to the government, we
are convinced that any rational trier of fact could have found that the
kidnapping and murder of L.R. involved substantial planning and
premeditation. Sanders has certainly not shown plain error.
For the third factor, the government was required to prove that the
victim was particularly vulnerable due to her youth. 316 It is undisputed that
L.R. was a twelve-year-old child. Sanders contends that although L.R. was
young, she “would not have been relatively disadvantaged confronting [him],
compared to adults in the same situation.” 317 Sanders points out that L.R.’s
mother, an adult woman, was unable to escape being murdered by him. 318
Here, the jury could find that the victim was particularly vulnerable due to
her age and the evidence at sentencing that showed her innocent and childish
mindset. For example, L.R.’s sixth grade teacher testified that L.R. “was just
very naïve” and that she “wasn’t as worldly wise as some sixth grade girls
can be.” 319 Moreover, on cross-examination, Marianne von Dach responded
affirmatively when asked if she “would be much more able to defend” herself

315
Sanders Br. at 107-08.
316
18 U.S.C. § 3592(c)(11).
317
Sanders Reply Br. at 35-36.
318
Sanders Br. at 109.
319
ROA.2467.

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as an adult as compared to a twelve-year-old child. 320 This testimony

supports the jury’s finding of vulnerability due to L.R.’s youth. Sanders has
not shown plain error.
IX
Sanders argues that the government presented victim impact
testimony during the penalty phase that was so prejudicial it rendered his
sentences unconstitutional. 321 Here again, it is unclear whether the
commutation of Sanders’s death sentences to life without possibility of
parole renders this issue moot. Accordingly, we address his arguments.
Because Sanders failed to object to the testimony, we review the claim for
plain error.
In Payne v. Tennessee, 322 the Supreme Court explained that victim
impact evidence “is designed to show [a] victim’s ‘uniqueness as an
individual human being.’” 323 The prosecution
has a legitimate interest in counteracting the mitigating
evidence which the defendant is entitled to put in, by
reminding the sentencer that just as the murderer should be
considered as an individual, so too the victim is an individual
whose death represents a unique loss to society and in
particular to his family. 324

320
ROA.3196 (“Yes, probably.”).
321
Sanders Br. at 109-10.
322
501 U.S. 808 (1991).
323
Id. at 823.
324
Id. at 825 (quoting Booth v. Maryland, 482 U.S. 496, 517 (1987) (White, J.,
dissenting)).

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Victim impact evidence is admissible during sentencing unless it “is so

unduly prejudicial that it renders the trial fundamentally unfair [in violation
of] the Due Process Clause of the Fourteenth Amendment.” 325
Sanders contends that the victim impact testimony from two of L.R.’s
sixth grade teachers was inadmissible “because they were not family
members and did not testify to the effect of L.R.’s death on her family.” 326
In support of his contention, Sanders cites United States v. Fields. 327 In that
case, the Tenth Circuit opined that victim impact testimony from friends was
admissible. 328 It further stated, however, that “[w]ithout additional guidance
from the [Supreme] Court,” it would not hold that testimony with respect to
the murder’s impact on co-workers was admissible. 329 The Tenth Circuit’s
opinion indicates that the Supreme Court has not expressly addressed which
witnesses outside the victim’s family are permitted to provide victim impact
testimony. However, as quoted above, the Supreme Court has recognized
that the victim’s “death represents a unique loss to society and in particular to
his family.” 330 This language indicates that witnesses outside the family
might be permitted to testify. At the very least, allowing such witnesses to
testify would not constitute plain and obvious error.

325
Id.
326
Sanders Br. at 119.
327
516 F.3d 923 (10th Cir. 2008).
328
Id. at 946-47.
329
Id. at 947.
330
Payne, 501 U.S. at 825 (emphasis added).

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Fifth Circuit precedent does not provide clear guidance as to whether

the teachers’ testimony is admissible. 331 Other circuits have rejected the
argument that admission of victim impact testimony is only allowed to be
introduced through the victim’s family. 332 While we recognize that the
Federal Death Penalty Act (FDPA) 333 refers to the “loss suffered by the
victim and the victim’s family,” 334 the Ninth Circuit has found that language
to be illustrative and not exhaustive. 335 Under these circumstances, Sanders
has not shown that allowing non-family members to give victim impact
testimony constituted plain and obvious error. 336
Sanders also argues that the district court erred in allowing L.R.’s
great aunt, Patricia Cloutier, to read from L.R.’s journals during her
testimony. 337 Cloutier testified that L.R. would travel from Las Vegas to visit
her in New Hampshire every summer. 338 Cloutier gave L.R. two journals
during her last visit in the summer of 2010. 339 One of the journals was an

331
See United States v. Bernard, 299 F.3d 467, 477-78 (5th Cir. 2002) (addressing
whether third-party testimony “contained improper references to religion and improper
characterizations of the perpetrators and their crimes” but not specifically considering
whether, as a threshold matter, third-party victim impact testimony is admissible).
332
See United States v. Mikhel, 889 F.3d 1003, 1052-53 (9th Cir. 2018); United States
v. Lawrence, 735 F.3d 385, 405-06 (6th Cir. 2013); United States v. Whitten, 610 F.3d 168,
188 (2d Cir. 2010); United States v. Bolden, 545 F.3d 609, 626 (8th Cir. 2008).
333
18 U.S.C. §§ 3591-98.
334
Id. § 3593(a).
335
Mikhel, 889 F.3d at 1053.
336
United States v. Broussard, 669 F.3d 537, 550 (5th Cir. 2012) (explaining that if
there is no binding precedent, any error was not plain).
337
Sanders Br. at 109.
338
ROA.2472.
339
ROA.2478.

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“American Girl journal,” in which L.R. answered questions about her

feelings. 340 The journal also had lists for L.R. to write about her favorite
things such as her favorite stuffed animal, color, and holiday. 341 L.R. also
answered questions in the journal about how she would react to various
scenarios. 342 The other journal Cloutier gave L.R. was one in which L.R.
documented her trip to New Hampshire during the summer of 2010. 343
Sanders asserts that “Cloutier’s otherwise appropriate testimony
crossed into plain error” during her testimony about L.R.’s journals. 344 We
disagree. Victim impact evidence “is designed to show [a] victim’s
‘uniqueness as an individual human being.’” 345 Further, the government
was entitled to counteract the mitigating evidence that Sanders placed before
the jury. 346 To put the challenged testimony into perspective, Cloutier’s
testimony with respect to the journals covered approximately thirty pages of
transcript, and Sanders’s evidence in mitigation covered approximately 650
pages. Although Cloutier’s testimony with respect to L.R.’s journals was
poignant and emotional, we are far from convinced that it was so unduly
prejudicial that it rendered Sanders’s sentencing hearing fundamentally
unfair. 347 Sanders has failed to show that Cloutier’s testimony constituted
plain error.

340
ROA.2478-79.
341
ROA.2482-83.
342
ROA.2485.
343
ROA.2504.
344
Sanders Br. at 114.
345
Payne v. Tennessee, 501 U.S. 808, 823 (1991).
346
Id. at 825.
347
Id.

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X
Sanders argues that the prosecutor’s closing argument during the
penalty phase constituted misconduct that requires a new sentencing
hearing. Here again, it is unclear whether the commutation of the death
sentences mooted this issue. The prosecutor’s argument may arguably have
affected the jury’s answer to “gateway issues,” which may have had some
impact on whether he might have been eligible for a sentence other than
imprisonment for life without the possibility of parole. We address the
arguments regarding closing argument out of an abundance of caution.
Our court follows a two-step approach when evaluating claims of
prosecutorial misconduct. 348 First, we “decide whether the prosecutor made
an improper remark” based on “the context in which [the remark was]
made.” 349 Second, if the prosecutor made an improper remark, we decide
“whether the remark ‘prejudiced the defendant’s substantive rights.’” 350
To make that determination, we consider “(1) the magnitude of the
statement’s prejudice, (2) the effect of any cautionary instructions given, and
(3) the strength of the evidence” against the defendant. 351 “The
determinative question is whether the prosecutor’s remark casts serious
doubt on the correctness of the jury’s verdict.” 352
Sanders challenges several portions of the prosecutor’s closing
argument at the penalty phase. Because Sanders did not object to any of the

348
United States v. Morganfield, 501 F.3d 453, 467 (5th Cir. 2007) (citing United
States v. Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004)).
349
Id.
350
Id. (quoting Insaulgarat, 378 F.3d at 461).
351
Id. (quoting United States v. Tomblin, 46 F.3d 1369, 1389 (5th Cir. 1995)).
352
Id. (quoting Insaulgarat, 378 F.3d at 461).

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arguments, these challenges are reviewed for plain error. 353 Sanders first
points to the following remarks made by the prosecutor during closing
argument: L.R. “didn’t deserve to spend three or four days in the car with
her mother’s murderer not knowing what was coming next. We don’t know
what other horrors she endured. We don’t know.” 354 Sanders contends that the
prosecutor’s remarks improperly insinuated that Sanders sexually abused
L.R. during the trip from Arizona to Louisiana after he killed her mother. 355
We do not agree that the complained of remarks necessarily implied that
Sanders sexually abused L.R. The undisputed evidence established that
immediately after shooting L.R.’s mother in the head, Sanders kidnapped
L.R. and drove across several states for a period of three to four days. It
would be horrific for a twelve-year-old girl to be trapped in a car for several
days and nights with the man who had murdered her mother in her presence.
Based on the evidence, the prosecutor could reasonably infer that this was a
horrifying trip for L.R. to endure. 356
Even if the remarks were construed to encourage the jury to speculate,
Sanders has failed to show that the remarks prejudiced his substantial rights.
Dr. Thompson, the government’s psychiatrist, testified that he asked
Sanders what occurred during the car trip, and Sanders responded that he
did not feel comfortable talking about it or “why” he did it. 357 Dr. Thompson
did not think that it was because Sanders could not remember what had

353
United States v. Perez-Solis, 709 F.3d 453, 466-67 (5th Cir. 2013).
354
ROA.3402 (emphasis added).
355
Sanders Br. at 123.
356
United States v. Vargas, 580 F.3d 274, 278 (5th Cir. 2009) (“A prosecutor is
confined in closing argument to discussing properly admitted evidence and any reasonable
inferences or conclusions that can be drawn from that evidence.”).
357
ROA.3313.

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happened or why he did it. 358 Dr. Thompson testified that Sanders is in a
“pretty tough situation and there may be some things he wants to keep to
himself and not tell everybody.” 359 Sanders did not object to this testimony.
This testimony apparently refers to Sanders’s conduct during the car trip
with L.R. Accordingly, prior to closing argument, the jury already had
testimony before it that invited speculation with respect to what occurred
during the car trip. The prosecutor’s remarks were of the same ilk. The
court also instructed the jury that the attorneys’ arguments do not constitute
evidence. 360 The challenged argument consists of two short sentences in a
record of several thousand pages. 361 Given the evidence of the murder of
L.R.’s mother, the duration of the kidnapping, and the manner of L.R.’s
brutal, deliberate murder, Sanders has not shown that his substantial rights
were violated. He has not shown plain error.
Based on this same alleged prosecutorial misconduct, Sanders
contends that the district court erred in denying his motion to set aside the
sentencing verdict. 362 For the same reasons we find no plain error, we also
hold that Sanders has not shown that the district court abused its discretion
in denying the motion for new trial. 363

358
ROA.3314.
359
ROA.3314.
360
ROA.3411.
361
United States v. Rice, 607 F.3d 133, 140 (5th Cir. 2010) (finding erroneous
statements to be minimal and harmless in part because the “statements occupy only a few
lines in a record that spans several thousand pages”).
362
Sanders Br. at 126.
363
See United States v. Piazza, 647 F.3d 559, 564-65 (5th Cir. 2011) (reviewing
decision to grant or deny motion for a new trial for abuse of discretion).

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Sanders next contends that the prosecutor’s mischaracterization of

the mitigation evidence constituted misconduct. Sanders presented
evidence that he suffered from brain damage and mental illness. Dr. Stewart,
the defense’s psychiatrist, 364 testified that “Sanders suffers from a very
serious chronic psychotic illness called ‘schizoaffective disorder,’ with a
qualifier being bipolar type.” 365 Dr. Stewart testified that Sanders had
multiple head injuries that resulted in brain damage 366 and impaired
executive functioning. 367 Dr. Ruben Gur, the defense’s neuropsychologist
with expertise in neuroimaging, 368 testified that the imaging showed that
Sanders had brain damage. 369 Dr. Gur testified that several structures in
Sanders’s brain were “abnormally small” 370 and that Sanders’s “speed of
processing is extremely slow.” 371 The government called Dr. Bianchini, a
neuropsychologist, 372 as a witness. Dr. Bianchini testified that although
Sanders “does have some brain dysfunction,” he performed “normally” on
tests for executive functions. 373 The government also called Dr. John
Thompson, a forensic psychiatrist, who testified that although Dr. Stewart
found that Sanders had executive functioning deficits, he “didn’t see that in

364
ROA.2791.
365
ROA.2976.
366
ROA.3045.
367
ROA.3012, 3045.
368
ROA.3111.
369
ROA.3165-67.
370
ROA.3148.
371
ROA.3158.
372
ROA.3228.
373
ROA.3238.

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the testing.” 374 Dr. Thompson further testified that when he interviewed
Sanders he did not observe signs of schizoaffective disorder, bipolar type. 375
Sanders challenges the prosecutor’s argument that Sanders “doesn’t
have executive functioning problems.” 376 This was permissible argument by
the prosecutor because Dr. Bianchini testified that Sanders “performs
normally” on tests with respect to executive function. 377 During closing
argument, a prosecutor may discuss the evidence admitted at trial and
reasonable inferences that can be drawn from the evidence. 378
Sanders also points to the prosecutor’s remarks that Dr. Stewart’s
findings were not supported by any of the other experts. The record shows
that the government’s expert witnesses disagreed with Dr. Stewart’s
diagnoses of schizoaffective disorder with bipolar and impaired executive
functioning. To the extent the prosecutor was referring to the schizoaffective
disorder diagnosis, we have found no other expert testimony agreeing with
Dr. Stewart’s diagnosis. Indeed, as previously set forth, Dr. Thompson, the
government’s psychiatrist, saw no signs of schizoaffective disorder when he
interviewed Sanders and when he reviewed Sanders’s test results.
Accordingly, the prosecutor’s remark that no other expert agreed with Dr.
Stewart’s diagnosis of schizoaffective disorder is proper argument.
With respect to the finding of impaired executive functioning, the
defense expert witness, Dr. Gur, testified that Sanders “performs very well

374
ROA.3318.
375
ROA.3320.
376
ROA.3371.
377
ROA.3238.
378
United States v. Bowen, 818 F.3d 179, 191 (5th Cir. 2016) (per curiam).

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on a task of abstraction and mental flexibility, which is a frontal lobe task.” 379
Dr. Gur had already testified that the frontal lobe involves the executive
function. 380 Dr. Gur further testified that Sanders’s accuracy on the frontal
lobe tests is normal “but his speed of processing is extremely slow.” 381 Dr.
Gur stated that Sanders’s executive functional attention and working
memory is from “a bit over one, up to two and a half standard deviation below
average.” 382 Although Dr. Gur’s testimony is not crystal clear, we
understand it to provide some support for Dr. Stewart’s finding of executive
impairment. It was arguably improper to state that all the experts disagreed
with Dr. Stewart’s finding of impaired executive function.
Nonetheless, we are not convinced the remarks rise to the level of
plain error. During closing argument, the prosecutor stated: “I think as I
recall the testimony—if you don’t recall it the same, go with your
recollection.” 383 Additionally, as previously set forth, the court instructed
the jury that the attorneys’ argument does not constitute evidence. 384
Sanders also argues that the prosecutor improperly urged the jurors to
discount his mitigating evidence. The Supreme Court has made clear that
juries in capital cases must be allowed to consider fully a defendant’s
mitigating evidence. 385 Also, a defendant is not required to establish a nexus

379
ROA.3158.
380
ROA.3122.
381
ROA.3158.
382
ROA.3158.
383
ROA.3366.
384
ROA.3411.
385
Abdul-Kabir v. Quarterman, 550 U.S. 233, 260 (2007).

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between the crime of conviction and the proffered evidence for it to be

considered by the jury. 386
Sanders challenges the following remarks during closing argument,
arguing that the prosecutor was urging the jury to disregard particular
mitigation evidence. After the prosecutor stated that Sanders had proposed
a list of 106 mitigating circumstances on the verdict form, she stated: “[L]et
me suggest to you that simply because they may be factually true statements
does not mean they are actually mitigating as to the defendant.” 387 We reject
the contention that this remark is urging the jurors to disregard the mitigating
evidence. Right after this remark, the prosecutor said: “You need to assess
all of [the mitigating circumstances]. And if the evidence supports them and
you find that they somehow point to some reason why the death penalty is
not appropriate and life is a better sentence, then you need to consider
them.” 388 These remarks were not urging the jurors to ignore the mitigating
evidence; instead, the prosecutor was telling the jurors that they need to
assess all of the mitigating evidence and determine the appropriate penalty.
Sanders makes a similar challenge to the following remark: “So how
is that mitigating for the defendant?” 389 The prosecutor asked that question
after referencing the evidence regarding Sanders’s mother’s difficult
upbringing. Sanders ignores the remarks made right after that question. The
prosecutor states Sanders “didn’t grow up that way.” 390 The prosecutor
then contrasts the relative comforts of Sanders’s upbringing compared to the

386
Tennard v. Dretke, 542 U.S. 274, 287 (2004).
387
ROA.3363.
388
ROA.3363-64.
389
ROA.3364.
390
ROA.3364.

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hardships endured by his mother. These remarks do not urge the jurors to
ignore the mitigation evidence.
Sanders next challenges the following remarks by the prosecutor:
“Yes, he has some processing issues. Yes, he has some language issues.
None of those stopped him from shooting [L.R.] four times.” 391 Again,
because there is no objection, we review this claim for plain error. Sanders
contends that these remarks urged the jurors to disregard the mitigation
evidence unless it provided an excuse for the crime. As previously set forth,
we are to read these remarks in the context of the trial. This remark was
followed by an extended discussion of Sanders’s crime of conviction and
specifically the attention, focus, and concentration he would have needed to
engage in such conduct. 392 Indeed, in these remarks, the prosecutor
specifically referenced the testimony of the government’s expert witness, Dr.
Bianchini. Read in context, it is clear that the prosecutor was demonstrating
that Sanders had a level of executive functioning by pointing to the attention,
focus, and concentration he exhibited during the murder of L.R. Therefore,
the statement constituted permissible argument.
Finally, Sanders complains the prosecutor improperly argued that
L.R. “didn’t deserve” what happened to her and that Sanders deserved
death. 393 Sanders contends that these remarks improperly urged the jurors
to base their decision on passion and prejudice. “Although the prosecution
may not appeal to the jury’s passions and prejudices, the prosecution may
appeal to the jury to act as the conscience of the community.” 394 The

391
ROA.3399.
392
ROA.3399.
393
ROA.3372.
394
Jackson v. Johnson, 194 F.3d 641, 655 (5th Cir. 1999).

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prosecution properly argued from the evidence and Supreme Court

precedent that Sanders deserved death. The Supreme Court has made clear
that a “jury must be allowed not only to consider [mitigating] evidence, or to
have such evidence before it, but to respond to it in a reasoned, moral manner
and to weigh such evidence in its calculus of deciding whether a defendant is
truly deserving of death.” 395 Sanders has failed to show the prosecutor’s
remarks constituted plain error.
XI
Sanders next contends that the FDPA 396 operates in an
unconstitutionally arbitrary and capricious manner—both generally and as
applied to him. 397 Arguably, if the FDPA were unconstitutional, Sanders
might be eligible for a sentence more lenient than a life sentence without
possibility of parole. Therefore, we will proceed to address this issue.
“The constitutionality of a federal statute is a question of law
reviewed de novo.” 398 This court has rejected Sanders’s argument, holding
that the “FDPA provides sufficient safeguards to prevent the arbitrary
imposition of the death penalty.” 399 Our precedent precludes Sanders’s
facial challenge to the FDPA.
With respect to Sanders’s as-applied challenge to the FDPA, he
contends that he received the death penalty while others did not because of
the race of his victims, the admission of unreliable evidence of uncharged

395
Brewer v. Quarterman, 550 U.S. 286, 296 (2007) (emphasis added).
396
18 U.S.C. §§ 3591-98.
397
Sanders Br. at 137.
398
United States v. Robinson, 367 F.3d 278, 290 (5th Cir. 2004).
399
United States v. Webster, 162 F.3d 308, 354 (5th Cir. 1998).

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conduct, and juror confusion. 400 Sanders and L.R. are both white. Sanders’s
statistically based arguments are analogous to those which the Supreme
Court considered and ultimately rejected in McCleskey v. Kemp. 401 In that
case, the Court addressed whether Georgia’s “capital punishment system
[was] arbitrary and capricious in application.” 402 The petitioner pointed to
statistical evidence suggesting racial prejudice impacted capital-sentencing
determinations in the state. 403 The Court ultimately dismissed the
petitioner’s arguments notwithstanding this evidence. It noted that the
statistical evidence did not prove that “race was a factor in [the petitioner’s]
particular case.” 404 Recently, in the context of a selective prosecution claim
based on race discrimination in a capital case, this court reiterated the
Supreme Court’s holding in McCleskey, stating that “statistical evidence
alone does not establish that ‘the decisionmakers in his case acted with
discriminatory purpose.’” 405
Like the petitioner in McCleskey, Sanders’s proffered evidence does
not demonstrate that the factors he identified impacted his jury’s
consideration of his sentence. He merely points to statistical evidence
purporting to show that improper considerations and juror confusion can play
a role in sentencing determinations and posits that these factors explain his
jury’s decision to impose the death sentence. 406 As in McCleskey, Sanders’s

400
Sanders Br. at 148.
401
481 U.S. 279, 308-13 (1987).
402
Id. at 308 (emphasis omitted).
403
Id.
404
Id.
405
Broadnax v. Lumpkin, 987 F.3d 400, 414 (5th Cir. 2021) (emphasis omitted)
(quoting McCleskey, 481 U.S. at 292).
406
Sanders Reply Br. at 49.

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evidence fails to demonstrate the applicable capital-sentencing regime was

arbitrarily and capriciously applied in his case.
Relying on a sampling of capital cases that did not result in a death
sentence, Sanders asserts that there is “no consistent, predictable measure
for determining which defendants will be spared and which condemned.” 407
This argument affords Sanders no relief. The Supreme Court has explained
that “the inherent lack of predictability of jury decisions does not justify their
condemnation. On the contrary, it is the jury’s function to make the difficult
and uniquely human judgments that defy codification and that buil[d]
discretion, equity, and flexibility into a legal system.” 408
Sanders also argues that the FDPA’s “requirements do little to
narrow the eligible pool.” 409 This court has rejected the argument that the
FDPA is unconstitutional because it fails to narrow significantly the class of
offenses to which the death penalty applies. 410 Finally, Sanders also
challenges the relaxed evidentiary standards that apply to the penalty phase
of the trial, but concedes that the argument is foreclosed by our precedent. 411
Sanders’s challenges to the FDPA are without merit.

407
Sanders Br. at 145.
408
McCleskey, 481 U.S. at 311 (alteration in original) (quoting Harry Kalven,
Jr. & Hans Zeisel, The American Jury 498 (1966)).
409
Sanders Br. at 142.
410
United States v. Webster, 162 F.3d 308, 354-55 (5th Cir. 1998).
411
Sanders Br. at 149-50 (citing United States v. Fields, 483 F.3d 313, 337 (5th Cir.
2007)).

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XII
Sanders argues that his death sentences are aberrational and
disproportionately severe. 412 As with other of Sanders’s arguments, it is
unclear whether commutation of his death sentences to life without
possibility of parole mooted this issue.
The government contends that Sanders did not raise this claim in the
district court, and therefore, that we should review it for plain error. 413
Sanders counters that because this argument does not assert error by the
district court, it could not have been preserved below. 414 The Supreme Court
has rejected a similar argument, holding the FDPA “does not explicitly
announce an exception to plain-error review, and a congressional intent to
create such an exception cannot be inferred from the overall scheme.” 415 We
therefore review Sanders’s argument for plain error.
The jury found that Sanders had brain damage and that he would not
be a danger in prison. 416 In light of those two findings, Sanders asks this court
to conduct a proportionality review of his sentence “compared to those
imposed in other federal cases.” 417 This court has explained that a
“[p]roportionality review examines the appropriateness of a sentence for a
particular crime by comparing the gravity of the offense and the severity of

412
Sanders Br. at 153.
413
Government Br. at 119-20.
414
Sanders Br. at 156 n.38.
415
Jones v. United States, 527 U.S. 373, 388-89 (1999); accord United States v.
Aquart, 912 F.3d 1, 30 (2d Cir. 2018); United States v. Lee, 374 F.3d 637, 652-53 (8th Cir.
2004).
416
ROA.1616, 1626.
417
Sanders Br. at 153.

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the penalty with sentencing practices in other prosecutions for similar

offenses.” 418 We have recognized that “[a]lthough the [Supreme] Court has
upheld capital sentencing schemes requiring proportionality review, the
Court has never required such review as constitutionally mandated.” 419
Moreover, this court has recognized that the “FDPA is not so lacking in
other checks on arbitrariness that it fails to pass constitutional muster for lack
of proportionality review.” 420 We decline to conduct a proportionality
review of Sanders’s sentence.
Nonetheless, the FDPA does require this court to “consider whether
the sentence of death was imposed under the influence of passion, prejudice,
or any other arbitrary factor.” 421 Here, every juror considered and made
findings as to each of Sanders’s 106 proposed mitigating factors. 422 Although
the jury unanimously found that Sanders had brain damage, 423 they
unanimously rejected the proposition that brain damage or mental illness
impaired Sanders’s “ability to make a decision or consider alternative
courses of action at the time of the crime.” 424 In fact, the jurors unanimously
found that Sanders did not suffer from any mental illness. 425 The jury did
reject numerous proposed mitigating factors. For example, the jurors

418
United States v. Jones, 132 F.3d 232, 240 (5th Cir. 1998), aff’d, 527 U.S. 373
(1999).
419
Id.
420
Id.
421
18 U.S.C. § 3595(c)(1).
422
ROA.1636-50.
423
ROA.1616.
424
ROA.1617.
425
ROA.1616.

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rejected the proposition that Sanders was remorseful that he killed L.R. 426
The jurors also rejected the proposition that he was capable of redemption. 427
The jury did not find that his brain damage “decreased [his] ability to
regulate emotions and motivated behavior.” 428
On the other hand, the jury agreed with some of the proposed
mitigating factors. The jury agreed that “Sanders was helpful to the
management and tenants at Pacific Mini Storage,” where he had been
employed. 429 The jury found that Sanders “is a complicated person who is
capable of good deeds.” 430 The jury found that Sanders’s life had value. 431
We agree with the district court’s opinion that the jury’s findings at the
penalty phase “reveal a thoughtful process” and indicate that it “carefully
sought a punishment befitting the crime.” 432 Importantly, the district court
instructed the jury that when determining the sentence, “you must avoid any
influence of passion, prejudice or undue sympathy. Your deliberations must
be based upon the evidence you have seen and heard . . . and on the law on
which I’ve instructed you.” 433 In light of the jury’s findings and the district
court’s instructions, we conclude that Sanders’s sentence was not imposed
under the influence of passion, prejudice, or any other arbitrary factor.

426
ROA.1615.
427
ROA.1627.
428
ROA.1618.
429
ROA.1625.
430
ROA.1626.
431
ROA.1627.
432
ROA.1548 (district court’s order denying motion to set aside sentencing verdict
based on a claim of improper prosecutorial closing argument).
433
ROA.3432.

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Sanders next argues that the Supreme Court’s holding that the Eighth
Amendment bars execution of the intellectually disabled should also prevent
a death sentence based on his brain damage and mental illness. 434 We first
note that there was no evidence that he was intellectually disabled; in fact,
the evidence demonstrated that Sanders had an I.Q. that was somewhat
above average. 435 Further, the jury unanimously found that Sanders did not
suffer from a mental illness. 436 In any event, this court has rejected the
argument that the Eighth Amendment bars the execution of a mentally ill
person. 437
Finally, with respect to extending the ban on executions to include
individuals with brain damage, this court has stated that such an argument
“is foreclosed by the numerous Fifth Circuit precedents rejecting the
proposition that the Eighth Amendment prohibits execution of those who
have brain problems but are not intellectually disabled.” 438 However, that
precedent does not necessarily control the instant case because it involved
cases reviewed under the deferential standard of review of the Anti-
Terrorism and Effective Death Penalty Act, 439 and this case comes to us on
direct appeal. Nonetheless, we come to the same conclusion. Sanders
contends there is an emerging “national consensus” that a sentence of death
for individuals with brain damage is disproportionate. 440 Citing a poll,

434
Sanders Br. at 159-62 (citing Atkins v. Virginia, 536 U.S. 304, 318 (2002)).
435
ROA.3253 (showing that Dr. Bianchini testified that Sanders “had very good
intelligence” with an I.Q. score of 115, and the “average is 100”).
436
ROA.1616.
437
Rockwell v. Davis, 853 F.3d 758, 763 (5th Cir. 2017).
438
Shore v. Davis, 845 F.3d 627, 634 (5th Cir. 2017) (per curiam).
439
28 U.S.C. § 2254; Smith v. Davis, 927 F.3d 313, 331 (5th Cir. 2019).
440
Sanders Br. at 161.

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Sanders states that the majority of Americans oppose the death penalty for
persons who are mentally ill or mentally challenged, and he believes those
descriptors “potentially encompass those with brain damage.” 441 He also
relies on the official positions of two professional organizations—the
American Bar Association and the American Psychiatric Association—who
oppose the death penalty for those suffering from brain damage. This
evidence falls short of what the Supreme Court found persuasive when
addressing a similar argument. In Roper v. Simmons, 442 the Supreme Court
held that the Eighth Amendment categorically prohibited sentencing a
defendant to death if he was under the age of eighteen at the time of the
offense. 443 Among other evidence, the Court relied on the fact that thirty
states had previously prohibited the death penalty for juvenile offenders. 444
The Supreme Court also found persuasive the fact that even in states where
juveniles could still be legally sentenced to death, only a few had actually
imposed the penalty in the years leading up to the Court’s decision. 445
Sanders’s proffered evidence fails to demonstrate that a comparative
consensus exists for those defendants suffering from brain damage. Sanders
has failed to show that his sentences were aberrational or disproportionate.
XIII
Finally, Sanders contends that he is entitled to relief under the
cumulative-error doctrine even if his various arguments do not merit relief

441
Sanders Br. at 161.
442
543 U.S. 551 (2005).
443
Id. at 575.
444
Id. at 564.
445
Id. at 564-65.

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individually. 446 We disagree. The cumulative-error doctrine “necessitates

reversal only in rare instances.” 447 As previously discussed, the vast majority
of Sanders’s arguments were unpersuasive, and those that had some merit
did not undermine our confidence in the judgment. We are likewise
convinced the cumulative effect of any errors that may have occurred did not
“so fatally infect the trial that they violated the trial’s fundamental
fairness.” 448 Sanders’s claim for relief pursuant to the cumulative-error
doctrine is without merit.
* * *
We VACATE the conviction and sentence imposed based on Count
Two of the indictment. We otherwise AFFIRM the judgment of the district
court.

446
Sanders Br. at 172-73.
447
United States v. Delgado, 672 F.3d 320, 344 (5th Cir. 2012) (en banc).
448
Id. (quoting United States v. Fields, 483 F.3d 313, 362 (5th Cir. 2007)).

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Andrew S. Oldham, Circuit Judge, concurring:

I
For no apparent reason, Thomas Steven Sanders shot Suellen Roberts
in the head from point-blank range. He did so in front of her 12-year-old
daughter, L.R.
Then Sanders turned his violence to L.R. According to Sanders him-
self, the girl “was in hysterics. She was in hysterics.” ROA.2179. Sanders
kidnapped L.R. After holding her for three or four days, Sanders shot L.R. in
the back of the head. But the girl did not die. So Sanders shot her two more
times in the head. But still the girl did not die. So Sanders shot her in the chest.
Yet again, the girl did not die. Finally, Sanders took a homemade knife and
slit the girl’s throat “so violently that the marks were on the bones of her
neck.” ROA.2438. Finally, she died. Sanders dumped L.R.’s body in the
woods of Louisiana, where it started decomposing in the late summer heat.
Hunters eventually found the girl’s corpse weeks later.
A jury of Sanders’s peers convicted him and imposed the death pen-
alty for his sadistic crimes.
On the eve of Joe Biden’s departure from office, however, the White
House 1 decided that Sanders deserved the ultimate act of executive grace:
Sanders’s death sentence was commuted.

1
Questions have arisen about the flurry of last-minute pardons issued by the Biden
Administration. “Overall, Biden granted 4,245 acts of clemency during his four-year tenure
in the White House. That far exceeds the total of any other president since the beginning
of the 20th century, including Franklin D. Roosevelt, who granted 3,796 such acts during
his 12 years in office.” John Gramlich, Biden Granted More Acts of Clemency Than Any Prior
President, Pew Rsch. Ctr. (Feb. 7, 2025), https://www.pewresearch.org/short-reads/
2025/02/07/biden-granted-more-acts-of-clemency-than-any-prior-president [https://per-

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II
A
To understand the nature and purposes of the pardon power, we must
turn to history. As Chief Justice Marshall put it nearly 200 years ago:
[T]his power had been exercised, from time immemorial, by
the executive of that nation whose language is our language,
and to whose judicial institutions ours bear a close resem-
blance; we adopt their principles respecting the operation and
effect of a pardon, and look into their books for the rules pre-
scribing the manner in which it is to be used by the person who
would avail himself of it.
United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833).
The history of the pardon power is august. The power’s roots reach
back to Mosaic, Greek, and Roman law. William F. Duker, The President’s
Power to Pardon: A Constitutional History, 18 Wm. & Mary L. Rev. 475,
476 (1977). The pardon prerogative likely first appeared in the Anglo-Saxon
legal system in laws enacted around 700 A.D. during the reign of King Ine of
Wessex. Stanley Grupp, Some Historical Aspects of the Pardon in England, 7

ma.cc/592P-TGS5]. At least one was issued by mistake. See Ethan Fry, Blumenthal: “Some-
one Dropped the Ball” on Biden Granting CT Accused Killer Adrian Peeler Clemency, Conn.
Post ( Jan. 23, 2025, 1:57 PM), https://www.ctpost.com/news/article/biden-peeler-
bridgeport-killer-clemency-blumenthal-20048813.php [https://perma.cc/2QR2-UYVA].
Some or all were allegedly effectuated via autopen. See Meredith McGraw & Annie Lins-
key, Trump Lays Groundwork for Investigating People Pardoned by Biden, Wall St. J. (Mar.
17, 2025, 5:12 PM), https://www.wsj.com/politics/policy/trump-lays-groundwork-for-in-
vestigating-people-pardoned-by-biden-73ee33ad [https://perma.cc/26FR-7KFK]; cf. Tim
Hains, The Moment Speaker Mike Johnson Knew Biden Wasn’t “In Charge” Anymore,
RealClearPolitics ( Jan. 19, 2025), https://www.realclearpolitics.com/video/2025/
01/19/when_mike_johnson_knew_joe_biden_wasnt_in_charge_anymore.html [https://
perma.cc/AQT8-D9A7] (Mike Johnson, Speaker of the House of Representatives, stated
that President Biden “genuinely did not know what he had signed” in at least one instance
toward the end of his presidency).

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Am.J. Legal Hist. 51, 53 (1963). One law, for example, provided: “If any
one fight in the king’s house, let him be liable in all his property, and be it in
the king’s doom 2 whether he shall or shall not have life.” 1 Benjamin
Thorpe, Ancient Laws and Institutes of England 46 (1840).
Another similarly gave the king the power to “be merciful” to one who re-
fused to turn in a thief by exempting him from the otherwise prescribed pun-
ishment. Id. at 54. During the rule of several subsequent kings, similar laws
were enacted concerning additional offenses. See Duker, supra, at 477. The
strength of the king’s pardon power further increased under William the
Conqueror, who “brought from Normandy the view that clemency was an
exclusive privilege of the king.” See Grupp, supra, at 55. Several centuries
later, in 1535, Parliament formally gave King Henry VIII the “whole and sole
power and authority” to pardon. Duker, supra, at 487 (quoting Act for Con-
tinuing Certain Liberties in the Crown, 27 Hen. 8, c. 24, cl. 1 (1535)).
Though broad, the king’s power to pardon was not unlimited. For ex-
ample, in 1389, Parliament legislated that “no pardon for treason, murder, or
rape, shall be allowed, unless the offence be particularly specified therein;
and particularly in murder it shall be expressed, whether it was committed by

2
The word “doom” traces to the “earliest known event in Anglo-American legal
history,” King Aethelbert’s promulgation of laws in 602 or 603 A.D. A.W.B. Simpson, The
Laws of Ethelbert, in On the Laws and Customs of England: Essays in
Honor of Samuel E. Thorne 3, 3 (Morris S. Arnold et al. eds., 1981). Aethelbert’s
laws begin: “These are the dooms which Aethelbert established.” Id. at 5. Although
“doom” is the common translation for the word domas, in truth domas “is almost untrans-
latable.” Ibid. As Brian Simpson explained, the “nearest equivalent is ‘judgments.’” Ibid.
But that calls to mind the modern distinction between legislation and adjudication, a dis-
tinction that “was not part of the intellectual stock of ideas of the seventh century.” Ibid.
Instead, the domas were “a set of judgments pronounced by a king (and his council of
elders) who did not think there was any critical difference between” adjudication and leg-
islation. Ibid. (citing Bede, Historia Ecclesiastica Gentis Anglorum 150
(731) (translating cum consilio sapientum as “with the advice of wise men”)).

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lying in wait, assault, or malice prepense.” 4 William Blackstone,

Commentaries *400 (citing 13 Rich. 2, stat. 2, c. 1). As “sir Edward
Coke observe[d],” it “was not the intention of the parliament that the king
should ever pardon murder under these aggravations.” Ibid. Indeed, Parlia-
ment “did not conceive it possible that the king would ever excuse an offence
by name, which was attended with such high aggravations.” Ibid. Another
limit on the pardon power was the “general rule, that, wherever it may rea-
sonably be presumed the king is deceived, the pardon is void.” Ibid. The same
is true when “the king was misinformed” because “any suppression of truth,
or suggestion of falshood, in a charter of pardon, will vitiate the whole.” Ibid.
B
The Framers explicitly “adopt[ed]” the king’s traditional pardon
power into the Constitution. Wilson, 32 U.S. (7 Pet.) at 160. Article II pro-
vides that the President “shall have Power to grant Reprieves and Pardons
for Offences against the United States, except in Cases of Impeachment.”
U.S. Const. art. II, § 2, cl. 1. The Founders referred to this power as the
“prerogative of mercy.” E.g., James Iredell, Answers to Mr. Mason’s Objec-
tions to the New Constitution (1788), reprinted in Pamphlets on the
Constitution of the United States 333, 354 (Paul Leicester Ford
ed., 1888); see also Ex parte Wells, 59 U.S. (18 How.) 307, 311 (1856) (“A par-
don is said by Lord Coke to be a work of mercy . . . .” (citation omitted)).
As in England, the American pardon power appears to encompass at
least five different types of clemency. See Daniel T. Kobil, The Quality of
Mercy Strained: Wresting the Pardoning Power from the King, 69 Tex. L. Rev.
569, 575 (1991) (listing five types). But only two are relevant here. A full par-
don “relieve[s] the petitioner from all penalties and disabilities attached to
the offence.” Ex parte Garland, 71 U.S. (4 Wall.) 333, 381 (1867) (emphasis
added). A commutation, on the other hand, was historically considered a kind

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of “conditional pardon.” E.g., Ex parte Wells, 59 U.S. (18 How.) at 308.

Because “the king,” or the President, could “extend his mercy upon what
terms he pleases,” he could “annex to his bounty a condition.” Black-
stone, supra, at *401. A common condition offered for a pardon was a lesser
punishment. E.g., Conditional Pardons, 1 Op. Att’ys Gen. 482, 482–83
(1821).
C
For the Founders, the pardon power had two primary purposes. Each
purpose, in turn, had two specific exemplars.
1
First and foremost, the Founders thought the pardon power was nec-
essary to secure justice for those convicted of crimes despite being legally or
morally innocent. In the words of Alexander Hamilton, “without an easy
access to exceptions in favour of unfortunate guilt, justice would wear a coun-
tenance too sanguinary and cruel.” The Federalist No. 74, at 385 (Alex-
ander Hamilton) (George W. Carey & James McClellan eds., 2001).
Start with legal innocence. Suppose “a man in reality innocent, but
with strong plausible circumstances against him,” was “convicted upon very
slight and insufficient proof.” Iredell, Answers to Mr. Mason’s Objections,
supra, at 353. It would be “unjust and unreasonable to exclude all means of
mitigating punishment” in such a circumstance. 3 Joseph Story,
Commentaries on the Constitution of the United States
§ 1488 (1833). The prerogative of mercy was thus deemed an essential means
of securing justice in this context.
Now consider moral innocence. As Joseph Story explained, some-
times “the law may be broken, and yet the offender be placed in such circum-
stances, that he will stand, in a great measure, and perhaps wholly, excused

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in moral and general justice, though not in the strictness of the law.” Ibid. In
such a case, a pardon was necessary “to soften the rigour of the general law.”
Blackstone, supra, at *397; accord Lon L. Fuller, The Case of the
Speluncean Explorers, 62 Harv. L. Rev. 616, 619 (1949) (arguing, as Chief
Justice Truepenny, that a pardon was appropriate for those who killed to save
their own lives “to mitigate the rigors of the law.”). In sum, the “man” might
have “offend[ed] against the letter of the law,” but he was “entitle[d] . . . to
mercy.” James Iredell, Address in the North Carolina Ratifying Convention, re-
printed in 4 The Founders’ Constitution 17, 17 (Philip B. Kurland
& Ralph Lerner eds., 1987). The pardon was the means of mercy.
2
The Framers saw a second primary purpose for the pardon power
beyond ensuring justice and mercy to the legally or morally innocent. That
purpose was promoting the public interest. Once again, this purpose had two
core exemplars.
The first was to quell rebellions and preserve peace. “[I]n seasons of
insurrection or rebellion,” Hamilton explained, “there are often critical
moments, when a well-timed offer of pardon to the insurgents or rebels may
restore the tranquility of the commonwealth.” The Federalist No. 74,
supra, at 386. Or as James Iredell put it, with the use of a pardon “at a critical
moment, the President might, perhaps, prevent a civil war” and bring about
“peace.” Iredell, Address in the North Carolina Ratifying Convention, supra, at
18.
As usual, the Founders were quite prescient. In 1795, President Wash-
ington used the pardon power to restore peace after the Whiskey Rebellion
in Pennsylvania. Kobil, supra, at 592. Likewise, Abraham Lincoln and
Andrew Johnson used the pardon power during and after the Civil War to
restore national tranquility. Id. at 593.

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The second core way in which the pardon power was meant to further
the public interest was by helping “obtain the testimony of accomplices.” 2
The Records of the Federal Convention of 1787, at 426 (Max
Farrand ed., 1911) (statement of James Wilson). “[I]t is often necessary to
convict a man by means of his accomplices.” Iredell, Address in the North
Carolina Ratifying Convention, supra, at 18. By offering a pardon to less cul-
pable offenders, the President might secure “the evidence of accomplices”
and thereby “bring great offenders to justice.” Ibid.
III
It is hard to see how the Biden Administration’s midnight pardon of
Sanders—or any of the other 36 pardoned murderers—fits with the history
and tradition of the pardon power. Sanders is not legally or morally innocent.
Far from it. Nor did pardoning him serve any public interest, let alone help
quell a rebellion or obtain his testimony in order to convict an even worse
criminal. Sanders acted alone when he murdered Ms. Roberts, when he kid-
napped her 12-year-old daughter, when he murdered the girl, and when he
unceremoniously dumped her body in the woods of Louisiana to rot. This
pardon is a stain on the noble prerogative of executive mercy.

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